PLJ 2020 Judgments

PLJ 2020 Karachi 1 (DB)

Present: Muhammad Ali Mazhar and Agha Faisal, JJ.

NATIONAL DATABASE AND REGISTRATION AUTHORITY, (NADRA) through DG/Director, Karachi--Petitioner

versus

REGISTRAR OF TRADE UNIONS, SINDH and another--Respondents

C.P. No. D-2138 of 2014, decided on 15.2.2019.

Constitution of Pakistan, 1973--

----Art. 199--National Database and Registration Authority Ordinance, 2000, Ss. 3, 43 & 46--Industrial Relations Act, 2010, S. 24--Obtaining of certificate of registration as NADRA, General Clauses Act, 1897, S. 8 issuance of C.B.A. Certificate--Legality of things--Principle of--Interpretation--Application for--Cancellation of registration of trade union certificate--Applicability of laws--Question of registration--Challenge to--Purpose of National Database and Registration Authority Ordinance, 2000 is to provide for establishment of National Database and Registration Authority so as to facilitate registration of all persons and establishment and maintenance of multipurpose databases, data warehouses, networking, interfacing of databases and related facilities--Whole object of General Clauses Act seems to safeguard and take care of legality of things done under former Acts--When changes are made in law it is distinctively and unambiguously made known as that where any Act or regulation is repealed and re-enacted, reference in any other enactment to provision of repealed former enactment must be read and construed as references to re-enacted new provisions unless a different intention appears--Section 8 of General Clauses Act as an illustration of general and well established principle of interpretation with repealed and re-enactment and normally not upset scheme and provision of other enactment which relate to repealed enactment--Though Registrar has filed an application for cancellation of registration of Trade Union, but it is imperative to hold that cancellation of trade union registration may be directed by labour court for union which has been registered in contravention of Sindh Industrial Relations Act, 2013--Industrial Relations Laws are not applicable in relation to authority or any person in service of Authority and once provisions of Industrial Relations Laws are inapplicable, therefore, question of registration of Respondent No. 2 as Trade Union or C.B.A. does not arise, no matter, any application for cancellation of Trade Union registration is filed or not in Labour Court, but law will take its own course--We hold that Respondent No. 1 issued certificate of registration and C.B.A. certificate to Respondent No. 2 without lawful authority--Petition was disposed off.

[Pp. 5, 8, 9 & 10] A, C, D, E & F

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

----S. 2--Definition--Purpose of--Any establishment, group of establishments, industry, having its branches in more than one province--The purpose of highlighting this provision is to address point at issue that though Industrial Relations Laws are not applicable to National Database and Registration Authority but even if it is presumed that these laws are applicable then National Database and Registration Authority is a trans-provincial establishment, hence no trade union could be registered by Registrar Trade Union Sindh but registration could be applied to National Industrial Relation Commission (NIRC). [P. 6] B

Mr. Adeel Aftab and Ms. Samina Iqbal, Advocatesfor Petitioner.

Mr. Miran Muhammad Shah, Addl. A.G.

Mr. Muhammad Zahid Khan, Assistant Attorney General.

Mr. Reejhu Mal S. Sajnani, Assistant Law Officer Labour, Representative of Registrar of Trade Unions, Sindh (Respondent No. 1.)

None present for Respondent No. 2.

Date of hearing: 7.11.2018.

Order

Muhammad Ali Mazhar, J.--The Constitution Petition has brought to challenge the Registration Certificate of Trade Union and CBA Certificate issued to the Respondent No. 2 by the Respondent No. 1 for the establishment of the petitioner (NADRA).

1. The learned counsel for the petitioner argued that the National Database and Registration Authority (NADRA) was established by the Federal Government in March, 2000 pursuant to Section 3 of the National Database and Registration Authority Ordinance, 2000. The Respondent No. 1 is the Registrar of Trade Unions Sindh, Karachi appointed pursuant to the provisions of Industrial Relations Act, 2008 which was revived through Industrial Relations (Revival and Amendment) Act, 2010 The Registrar of Trade Unions Sindh, Karachi is inter alia empowered under Section 15 of Revived and Amended IRA, 2008 to register trade unions. The Revived and Amended IRA, 2008 was further repealed by the provincial Sindh Industrial Relations Act, 2013 (SIRA, 2013) which is currently in force. The Respondent No. 2 is NADRA Employees Union Sindh registered under Revival and Amended IRA, 2008 vide a certificate of registration dated 15.05.2012 issued by Respondent No. 1 in violation of the provisions of NADRA Ordinance. Pursuant to the Impugned Registration, Respondent No. 2 started raising unjustified demands and threatened to go on strike if the said demands were not fulfilled by the petitioner which may have serious implications on the smooth functioning of statutory duties of registration of citizens and maintenance of databases and the National Database Warehouse. He further argued that according to Section 43 of NADRA Ordinance, the applicability of the Industrial Relations Ordinance, 2002 is excluded. He referred to Section 8 of the General Clauses Act, 1897 and argued that the reference to IRO, 2002 in Section 43 of NADRA Ordinance also includes the Revived and Amended IRA 2008 and SIRA, 2013. It was further contended even it is assumed that petitioner and its employees are not excluded from the purview and ambit of Revived and Amended IRA, 2008 and SIRA, 2013, yet by virtue of the very nature of the petitioner establishment and its statutory mandate and functions, the said laws would not have applied to it under section 1(3)(b) of Revived and Amended IRA, 2008 and section 1(3)(ii) of SIRA, 2013 for the reason that the petitioner is part and parcel of the administration of the State and thus persons in its service shall be deemed to be employed in the administration of the State therefore the petitioner’s establishment is exempted hence the Respondent No. 1 had no jurisdiction to pass any order registering Respondent No. 2. He further contended if industrial relations laws are applicable to NADRA then being an establishment having its headquarters at Islamabad and its employees, officers and offices in all the provinces of Pakistan, could only be subjected to the Industrial Relations Act, 2012 (a Federal Law) and not SIRA, 2013 (Provincial Laws) as per the definition of “establishment” provided in the Industrial Relations Act, 2012 which means any office, firm, factory, society, undertaking, company, shop or enterprise, which employs workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches in the Islamabad Capital Territory or falling in more than one province, whether situated in the same place or in different places. The learned counsel concluded that the registration of Respondent No. 2 as a trade union vide certificate of registration dated 15.05.2012 issued by Respondent No. 1 to Respondent No. 2 was without lawful authority hence liable to be set aside with all consequent acts and orders.

2. The Assistant Law Officer Labour, Registrar of Trade Unions, Sindh Karachi appeared on behalf of the Respondent No. 1. He placed on record a complaint filed by the Registrar of Trade Unions under Section 12 of the Sindh Industrial Relations Act, 2013 in the labour court for soliciting an order against the Respondent No. 1 (union) to which registration certificate was issued on 15.5.2012 and C.B.A. certificate on 19.7.2012 for the establishment of Respondent No. 2. It is inter alia contended in the application that Respondent No. 1 by misrepresentation obtained the registration of the union and failed to point Section 43 of the National Database and Registration Authority Ordinance, 2000 which excluded the application of the said ordinance. The union violated Section 43 of NADRA Ordinance and obtained certificate of registration hence the registration of Respondent No. 1 is liable to be cancelled. It is a matter of record that despite various opportunities and notices, nobody appeared to represent the Respondent No. 2 nor any reply was filed.

3. Heard the arguments. For the ease of reference, Section 43 of NADRA Ordinance is reproduced as under:

Section 43. Ordinance XCI of 2002 not to apply to Authority.--The Industrial Relations Ordinance, 2002 (XCI of 2002), shall not apply to or in relation to the Authority or any person in the service of the Authority. [Emphasis added].

5. The purpose of National Database and Registration Authority Ordinance, 2000 is to provide for establishment of National Database and Registration Authority so as to facilitate the registration of all persons and the establishment and maintenance of multipurpose databases, data warehouses, networking, interfacing of databases and related facilities. Another purpose was to improve and modernize registration and database system for its multiple beneficial uses and applications in efficiently and effectively for running the affairs of the State and the general public thereby achieving the goals of good governance, public service and minimizing scope for corruption and inefficiency. To carry out the purpose of this Ordinance, the Authority constituted under Section 35 of this Ordinance may from time to time appoint Registration Officers, members of its staff, experts, consultants, advisers and other officers and employees on such terms and conditions as it may deem fit. Whereas, under Section 36 of the same Ordinance, it is explicitly provided that the Chairman, members, Registration Officers, members of its staff, experts, consultants, advisers, other officers and employees of the Authority shall be deemed to be public servants within the meaning of Section 24 of the Pakistan Penal Code, 1860. Under Section 43 of the National Database and Registration Authority Ordinance, 2000 it is envisioned that the Industrial Relations Ordinance, 1969 (XXIII of 1969) shall not apply to or in relation to the Authority or any person in the service of the Authority. While Section 46 encapsulates that the provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force. In exercise of powers conferred by Section 45 of the National Database and Registration Authority Ordinance, 2000 read with Sections 35 and 37, the Authority was pleased to make National Database and Registration Authority Employees (Service) Regulations, 2002. The aspiration of framing regulations was to streamline and rationalize the service structure for all registration officers, members of its staff, officers or employees of the NADRA together with the terms and conditions of their service in a clear and appropriate manner. The terms and conditions of the employees are governed by these Regulations. Under Section 2, clause (i) employee means any Registration Officer, member of its staff, officer or employee of NADRA holding a post in NADRA, but does not include a person employed on a short-term contract for a period not exceeding twelve months or employed on work-charge basis or paid from office contingencies.

1. The bone of contention is that the Respondent No. 2, despite clear bar contained under Section 46 of the National Database and Registration Authority Ordinance, 2000 obtained a certificate of registration as NADRA Employees Union Sindh on 15.05.2012 and on 19.07.2012, the Registrar of Trade Union Sindh (Respondent No 1), issued a CBA certificate to the Respondent No. 2 under section 24 of the Industrial Relations (Revival and Amendment) Act, 2010. It appears that while awarding the registration and CBA certificate by the Registrar of Trade Union Sindh, Karachi, he failed to consider the niceties and exactitude of Section 43 of the Database and Registration Authority Ordinance, 2000 in which it is clearly eloquent that Industrial Relations Ordinance, 1969 shall not apply to the Authority. On 14.03.2012, Industrial Relations Act, 2012 was promulgated which repealed Industrial Relations Act, 2008 without prejudice to the provisions of Sections 6 and 24 of the General Clauses Act.

7. The Industrial Relations Act, 2012 is applicable to all persons employed in any establishment or industry in the Islamabad Capital Territory or carrying on business in more than one province. In Section 2, definition clause (xxxii) trans-provincial means any establishment, group of establishments, industry, having its branches in more than one province. The purpose of highlighting this provision is to address the point at issue that though Industrial Relations Laws are not applicable to National Database and Registration Authority but even if it is presumed that these laws are applicable then National Database and Registration Authority is a trans-provincial establishment, hence no trade union could be registered by the Registrar Trade Union Sindh but the registration could be applied to the National Industrial Relation Commission (NIRC).

1. Before adverting this limb of argument, it is imperative to thrash out a silhouette and backdrop of Section 43 of the National Database and Registration Authority Ordinance, 2000 which specifically excluded the provisions of Industrial Relations Ordinance and this (NADRA) Ordinance has been given overriding effect notwithstanding anything contained in any other law for the time being in force. In the case of Pakistan Workers Federation, Balochistan v. Federation of Pakistan (2014 PLC 351), the learned division bench of Balochistan High Court held that Industrial Relations Act, 2012 was properly enacted by Parliament and is not ultra vires to the Constitution, therefore, the Industrial Relations Ordinance, 2002 which was succeeded by the Industrial Relations Act, 2012, cannot be categorized as being unconstitutional. It was further held that NADRA was setup pursuant to a Federal law and its reach is throughout Pakistan hence it would come within the domain of the Inter-province Clause termed as trans-provincial, therefore, trade unions in respect of NADRA cannot be registered by the Registrar Trade Unions Balochistan under the Balochistan Industrial Relations Act, 2010. The learned division bench further observed that the Industrial Relations Act, 2012 was enacted on 14th March, 2012 and as such on the day when the trade union was registered, the Industrial Relations Act, 2012 was in the field. The learned division bench concluded that the registration of the NADRA Employees Union Balochistan was ultra vires, however, the constitutionality of Section 43 of the NADRA Ordinance was not examined.

2. Section 43 of the NADRA Ordinance must be read in the light of well settled exposition of law set forth under Section 8 of the General Clauses Act which is linked and concomitant to the construction of references to repealed enactments. For the ease of reference, Section 8 of the General Clauses Act is reproduced as under:

3. Construction of references to repealed enactments: (1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.

(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted, with or without modification, any provision of a former enactment, then references in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.

1. The words repeals, re-enacts and the provisions so repealed, come into sight in Section 8 of the General Clauses Act, 1897 are significant and noteworthy. This confines the operation of rule of construction of references only where any provision of former enactment is repealed and re-enacted. In such a case it is only the precise re-enacted provision that can be construed and deduce in place of repealed provision. The whole object of the General Clauses Act seems to safeguard and take care of the legality of things done under former Acts. When changes are made in the law it is distinctively and unambiguously made known as that where any Act or regulation is repealed and re-enacted, reference in any other enactment to provision of the repealed former enactment must be read and construed as references to the re-enacted new provisions unless a different intention appears. Section 8 of the General Clauses Act as an illustration of general and well established principle of interpretation with the repealed and re-enactment and normally not upset the scheme and provision of other enactment which relate to the repealed enactment.

11. Broadly speaking, legislation by referential incorporation falls in two categories : First, where a statute by specific reference incorporates the provisions of another statue as of the time of adoption. Second, where a statue incorporates by general reference the law concerning a particular subject, as a genus. In the case of the former, the subsequent amendment made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference. This principle of construction of a reference statute has been neatly summed up by Sutherland thus:

“A statute which refers to the law or a subject generally adopts the law on the subject as of the time the law invoked. This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted.” (Sutherland’s Statutory Construction, 3rd Ed., Art. 5208, P. 5209).

The Corpus Juris Secundum also enunciates the same principle in the following terms:

“.... where the reference in an adopting statute is to the law generally which governs the particular subject, and not to any specific statute or part thereof ….. the reference will be held to include the law as it stands at the time it is sought to be applied, with all the changes made from time to time, at least as far as the changes are consistent with the purpose of the adopting statute”

(Swamikamu’s General Clauses Act, (6th Edition-2011)

1. In the same context the judgment of National Telecommunication Corporation v. National Industrial Relations Commission (2014 SCMR 1833) is also relevant in which the Hon’ble Supreme Court has held as under:

2. Section 8 of the General Clauses Act which, in its essence and substance, provides what section 88 of Act IX of 2012 does and thereby gives added strength to the aforesaid exclusion by adumbrating that “where this Act or any other Act after the commencement of this Act repeals and re-enacts, with or without modification of any provision of former enactment, then reference in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as reference to the provisions so re-enacted”. Therefore, we have no hesitation to hold that Act IX of 2012 would not apply to the officers and employees of the National Telecommunication Corporation in the absence of any different intention appearing in any of its provisions. There is also nothing in Act XVII of 1996 and that of 2012 as could present a conflict between the two. A close and careful reading of the two would unmistakably show that they are in harmony with each other....”

3. Having thus considered, we have no hesitation to hold that Industrial Relations Act IX of 2012 does not apply to the officers and employees of the National Telecommunication Corporation and that impugned judgment being against the express provisions of the law cannot be maintained.

13. Along with the comments filed on behalf of the Registrar, Trade Unions Sindh, copy of application filed by the Registrar Trade Unions Sindh against NADRA Employees Union Sindh (Respondent No. 2) under Section 12 of the Sindh Industrial Relations Act, 2013 is attached, which pertains to the cancellation of registration of trade union if the labour court so directs upon the complaint in writing made by the Registrar that the union has contravened or has been registered in contravention of any of the provisions of this Act or the Rules; contravened any of the provisions of its constitution; or made in its constitution any provision which is inconsistent with the Act or the Rules. Though the Registrar has filed an application for the cancellation of the registration of the Trade Union, but it is imperative to hold that the cancellation of trade union registration may be directed by the labour court for the union which has been registered in contravention of Sindh Industrial Relations Act, 2013 but here the

case is altogether different in which the exactitudes of Section 43 of the NADRA Ordinance, 2000 is under consideration, so basically the Union has not been registered in contravention of Sindh Industrial Relations Act, 2013 rather in terms of Section 43 of NADRA Ordinance, 2000, the Industrial Relations Laws are not applicable in relation to the authority or any person in the service of the Authority and once the provisions of Industrial Relations Laws are inapplicable, therefore, the question of registration of the Respondent No. 2 as Trade Union or C.B.A. does not arise, no matter, any application for cancellation of Trade Union registration is filed or not in the Labour Court, but law will take its own course.

14. As a result of above discussion, we hold that the Respondent No. 1 issued the certificate of registration and C.B.A. certificate to the Respondent No. 2 without lawful authority. Consequently, both certificates are set-aside. The petition is disposed of accordingly along with pending application.

(Y.A.) Petition accepted.

PLJ 2020 Karachi 10

Present:Salahuddin Panhwar, J.

MUHAMMAD TAHIR--Petitioner

versus

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

C. P. No. S-919 and C.M.A. No. 4708 of 2017, decided on 18.2.2019.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Filling of petition--Dismissed on merits--Territorial jurisdiction--Determination of rights--Challenge to--If Court lacks jurisdiction on count of ‘territorial jurisdiction’ or ‘pecuniary jurisdiction’ it shall not be advisable to Court to proceed further else any subsequent order, determining rights of parties, shall be nothing but a nullity--Thus, I would feel safe in saying that after dismissal of instant petition by order dated 30.06.2017, there remained no room for filing ‘restoration application’--Disposal of petition on ‘merits’ was not brought into notice of Court--An order passed because of some mistake of fact or law shall always be opened to be corrected/ rescinded within meaning of General Clauses Act--Since, candidly, petition was dismissed by final order on merits, hence, subsequent order of restoration, being prima facie result of some mistake of fact, cannot be allowed to sustain nor can be sufficient to reverse disposal of a lis which, otherwise, could only be done by an appellate (superior) Court--Since, I am also conscious that a petition, once lawfully disposed of on merits, cannot be disposed of again by same court, therefore, legal position compels me to conclude that order dated 20.8.2018 be deemed to have never been passed and petition shall be deemed to have been disposed of vide order 30.6.2017 for all purposes and intents--Order accordingly. [Pp. 12 & 13] A, B & C

Ms. Kausar Anwar Siddiqui, Advocate for Petitioner.

Mr. Abdul Qadir Laghari, Advocate for Respondents.

Chaudhry Khalid Nawaz, Asstt. A.G. Sindh for Respondents.

Date of hearing: 18.2.2019.

Order

By order dated 30.06.2017 instant petition was dismissed on the issue of territorial jurisdiction, such order is that:

“Petitioner and his counsel are called absent. By order dated 14.06.2017 he was directed to satisfy this Court as to the maintainability of this petition as prima facie it appears that the matter ought to proceed under the guardian and wards Court. Respondent No. 3 was also directed to be present in Court alongwith minors who should not be removed from the territorial jurisdiction of this Court. Today, Respondent No. 3 has produced minors in Court, however, states that she has come from Rehimyar Khan Punjab as this is her permanent residence and that matrimonial legal proceedings are proceeding in that province i.e. Punjab. Under these circumstances this Court does not have territorial jurisdiction to look in this matter since the respondent is permanent residence of Punjab and family proceeding have already been instituted before the lower Court at Rahimyar Khan (Punjab). Accordingly this petition is dismissed as not being maintainable due to lack of territorial jurisdiction.”

Whereas, learned counsel for the petitioner has referred order dated 20.08.2018, which contends that:

“This is a restoration application, the petitioner has tried her best to serve the respondents including by way of newspaper/publication stating that this matter shall be heard before this Court on 28.08.2018 under these circumstances it appears that all possible steps have been taken to notify the respondents who perhaps are avoiding to appear before this Court. Under these circumstances and in the interest of justice the restoration application is allowed. Re-issue notice to respondents namely Mst. Afshan Tahir wife of Muhammad Tahir and Rao Kaleem son of Abdul Hakim through publication that this matter has been restored and they should be present before this court on 02.10.2018.”

2. Prima facie, by order dated 30.6.2017 the petition was dismissed on merits, being found not maintainable on count of territorial jurisdiction. It is needless to add that a final terminal (disposal) of a lis on merits results in closing all rooms upon such Court to extent of such disposed off lis except by way of ‘review’. There can be no denial to proposition that no Court can take cognizance unless the barrier of ‘territorial jurisdiction’ and ‘pecuniary jurisdiction’ stands lifted by law. Both of these, shall always be the roots of every legal structure hence, I would insist, in absence of root no legal structure can sustain. In short, if the Court lacks the jurisdiction on count of ‘territorial jurisdiction’ or ‘pecuniary jurisdiction’ it shall not be advisable to the Court to proceed further else any subsequent order, determining rights of parties, shall be nothing but a nullity. This has been the reason that law always require the Courts to attend this issue as primary duty. Reference is made to the case of Multan Electric Power Company Ltd. v. Muhammad Ashiq and others (PLD 2006 SC 328) wherein it is observed as:

“16. It is primarily the duty of the Courts and other adjudication forums to decide lis before them in accordance with law. The Courts and other forums are not relieved of this duty on account of an act or omission of a litigant or a lawyer. Also that jurisdiction on a Tribunal or Court is conferred by law and not by consent of the parties, express or implied.”

3. Thus, I would feel safe in saying that after dismissal of the instant petition by order dated 30.06.2017, there remained no room for filing the ‘restoration application’. Restoration, I shall insist, can only be sought where the lis was disposed of either for non-prosecution or for noncompliance but course of restoration shall never be available where the lis was disposed of on merits, including on point of territorial or pecuniary jurisdiction(s).

4. Without prejudice to above, the perusal of the order dated 20.08.2018 shows that at such occasion the disposal of the petition on ‘merits’ was not brought into notice of the Court. An order passed because of some mistake of fact or law shall always be opened to be corrected/ rescinded within meaning of General Clauses Act. Since, candidly, petition was dismissed by final order on merits, hence, subsequent order of restoration, being prima facie result of some mistake of fact, cannot be allowed to sustain nor can be sufficient to reverse the disposal of a lis which, otherwise, could only be done by an appellate (superior) Court. Since, I am also conscious that a petition, once lawfully disposed of on merits, cannot be disposed of again by same court, therefore, legal position compels me to conclude that order dated 20.8.2018 be deemed to have never been passed and petition shall be deemed to have been disposed of vide order 30.6.2017 for all purposes and intents. Order accordingly.

(Y.A.) Order accordingly

PLJ 2020 Karachi 13 (DB)

Present:Mohammed Karim Khan Agha and Shamsuddin Abbasi, JJ.

GULSHER AHMED CHACHAR and others--Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and others--Respondents

Const. P. Nos. 4909, 3912 and 4610 of 2018, decided on 3.12.2018.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--National Accountability Ordinance, 1999, Ss. 9(a) & 10--Allegations of--Registration of dummy firms without approval of competent authority--fraudulently--Violation of essential requirements--Misused of authority--Discharging urea from godowns in collaboration with petitioners--Initiation of departmental enquiry--Report of inquiry committee--Madus operandi--Further inquiry--Fiduciary duty of employee--Deliberately violation of rules--Tribulation of specific role--Right of fair and expeditious trial--Address of all companies, where petitioners Inamuddin, Afaquddin and co-accused Imamuddin were directors/partners, is same and all documents and correspondences disclose same address--This shows their modus operandi to cheat system by making/ registering new dummy firms just to continue their fraudulent acts and looting national exchequer--A case of further inquiry would only be made out when data collected by prosecution was not sufficient to provide reasonable grounds for believing that a prima facie case does not exist against an accused--It can be assumed that all petitioners had requisite mens rea to commit offence charged with through their acts, conduct, failure to exercise authority, misuse of authority and deliberately violating rules--It is however finally upto trial Court to decide mens rea of accused petitioners after recording evidence in matter--At stage of bail detailed discussion is not necessary but as far as evidence which is on surface of record of this case shows that petitioners are prima facie involved in commission of offence--They are nominated in reference and attributed a specific role--No evidence of enmity in terms of mala fide or ulterior motive is available on record, which might have actuated prosecution to falsely implicate petitioners--Thus, we are of considered view that petitioners do not deserve concession of bail at this stage--Consequently, petitions of Gulsher Ahmed Chachar and Afaquddin for post arrest bail are dismissed--The petition of Inamuddin Marwat for pre-arrest bail is also dismissed simultaneously recalling earlier order of granting ad-interim pre-arrest bail with immediate effect-- Object of criminal trial is to make an accused to face trial and not to punish an under trial prisoner for offence alleged against him and accused is entitled to expeditious excess to justice which includes a right to fair and expeditious trial without any unreasonable delay, therefore, we are optimistic that trial Court would expedite matter and complete trial preferably within a period of four {04} months under intimation to this Court through M.I.T-II--Office shall provide a copy of this order to concerned Accountability Court for compliance--Petitions was disposed of.

[Pp. 23, 24, 25] B, C, D, E & F

Object of pre-arrest bail--

----Unnecessary harassment--Object of pre arrest bail is to save innocent persons from being unnecessarily harassed due to their arrest in cases instituted against them with mala fide intention and ulterior motives--For grant of pre-arrest bail there must be some essential element about mala fide on part of complainant or investigating agency and accused has to satisfy Court on point of mala fide. [P. 21] A

PLD 2009 SC 427 and 2016 SCMR 2064 ref.

Mr. Amer Raza Naqvi, Advocate for Petitioner (in C.P. No. 4909 of 2018).

Mr. K.A. Vaswani, Special Prosecutor, NAB for Respondent (in C.P. No. 4909 of 2018).

Mr. Abdul Majeed Khoso, Advocate for Petitioner (in C.P. No. 3912 of 2018).

Mr. K.A. Vaswani, Special Prosecutor, NAB (in C.P. No. 3912 of 2018).

Mr. Abdul Majeed Khoso, Advocate for Petitioner (in C.P. No. 4610 of 2018).

Mr. K.A. Vaswani, Special Prosecutor, NAB for Respondent (in C.P. No. 4610 of 2018).

Dates of hearing: 12 & 19.11.2018.

Order

Shamsuddin Abbasi, J.--Through their respective petitions, petitioners Gulsher Ahmed Chachar and Afaquddin, nominated in the reference as accused Nos.8 and 3, seek post arrest bail in National Accountability Bureau {NAB} Reference No. 22 of 2017 under Section 9(a) of National Accountability Ordinance (NAO), 1999 punishable under Section 10 of the Ordinance and Schedule thereto while petitioner Inamuddin Marwat, nominated in the reference as accused No. 2, seeks pre-arrest bail and is on ad-interim pre-arrest bail granted to him by this Court without touching the merits of the case.

1. In essence the allegations against the petitioners as emerged in the reference are that they in connivance with each other misappropriated {imported} urea of NFML and caused loss of Rs.143.296 million to Government exchequer through falsification of record, corruption, misuse of authority and other deceitful means, thereby they have committed offences of corruption and corrupt practices as defined under Section 9(a) of NAO, 1999, punishable under Section 10 of the Ordinance and schedule thereto.

2. During investigation it was found that petitioners Inamuddin Marwat, Afaquddin Marwat, Shaukatullah and co-accused Imamuddin Marwat being owners/directors of Messrs Inam and Company masterminded a plan to steal/ misappropriate imported urea worth millions of rupees by changing their faces and variant nomenclatures through bogus/unregistered front/dummy firms in various names and availed a contract of Transportation, Tally, Labour and Security of Karachi Godown through its dummy firm Messrs Sindh Goods Transport Company in May - June, 2013, and Messrs Shahmeer Tally Labour and Security during December, 2013-2014 through fraudulent means in connivance with petitioner Gulsher Ahmed Chachar, Ex-Port Incharge/Regional Manager, National Fertilizer Marketing Limited {NFML} and other co-accused Uzair Abubakar {Ex.AGM/DGM}, Amjad Iqbal {Store Incharge} and Mushtaq A. Qaiser {Deputy Manager} NFML, who by misusing their authority collusively awarded contract to a bogus/dummy firm Messrs Inam and Company {Messrs Sindh Goods Transport Company}, owned and controlled by petitioners Inamuddin Marwat, Afaquddin Marwat, Shaukatullah and co-accused Imamuddin Marwat, without approval of competent authority and submission of genuine documents or fulfilling requirements of tenders/bids as per rules and regulations of Public Procurement Regulatory Authority Ordinance, 2002. It has also come on record that petitioner Gulsher Ahmed Chachar and co-accused Uzair Abubakar, Amjad Iqbal and Mushtaq A. Qaiser {officials of NFML} abrogated and disregarded all SOPs/manuals and mandatory documentation, allowing petitioners Inamuddin Marwat, Afaquddin, Shaukatullah and co-accused Imamuddin, Abdul Ghaffar and Usman Asghar to violate the essential requirements and conduct their malicious designs of misappropriation, pilferage, quantity lessening {sweep}, dumping and shortage.

3. After disclosure of shortage of urea in respect of Messrs Sindh Goods, petitioner Inamuddin Marwat, Afaquddin, Shaukatullah and co-accused Imamuddin Marwat, Abdul Ghaffar and Usman Asghar launched another dummy firm “Messrs Inam and Company namely, Shahmeer Tally, Labour and Security and availed possession of Pakistan Godown, Karachi, through an irregular tender in connivance with petitioner Gulsher Ahmed Chachar and co-accused Uzair Abubakar, Amjad Iqbal and Mushtaq A. Qaiser by way of an agreement between NFML and Messrs Shahmeer Tally for 22 days from 09.12.2013 to 31.12.2013, which was extended till 08.01.2014 and 10.02.2014 and finally till the finalization of fresh tender process on various pretexts.

4. A departmental enquiry was also initiated wherein it was established that accused Uzair Abubakar {AGM/DGM} misused his authority in respect of Messrs Sindh Goods Transport while in another departmental enquiry it was found that Messrs Shahmeer Tally submitted forged and bogus documents in getting the tender. The departmental enquiry committee of NFML ascertained the losses and responsibility of NFML officers and found that 1947.5 M. tons of urea was missing from Rasheed Godown and 700.85 M. tons from Kohinoor Godown, which were handed over without written contract but remained under the management and responsibility of Messrs Sindh Goods Transport {dummy of Inam and Company}, which failed to hand over the godowns duly accounted for urea and caused shortage. The committee found that accused Uzair Abubakar abused his position as acting GM to force his subordinates at Karachi to give the contract to Messrs Sindh Goods Transport Company despite already quoted lower rates, which seems to have been tampered. The illegal possession of company continued for months but petitioner Gulsher Ahmed Chachar {Port Office Incharge} failed to take any action and kept discharging urea from godowns while accused Uzair Abubakar in collaboration with petitioners Inamuddin Marwat, Afaquddin, Shaukatullah and accused Imamuddin Marwat got initiated the bogus/pseudonymous application apparently signed by a person “Jumair Shah” along with his CNIC, who denied any such application or proprietorship, whereas petitioner Gulsher Ahmed Chachar and accused Uzair Abubakar and Amjad Iqbal deliberately allowed a defaulting carriage contractor to appear as new bogus firm namely, Messrs Sindh Goods Transport Company and also accepted their pseudonymous and false documentations without appearance and confirmation of real owner/representative at the time of submission of documents and handing over of urea possession at later stage and petitioner Gulsher Ahmed Chachar and accused Amjad Iqbal issued NOC/ recommendation for award of a temporary contract with processing of the blank stamp paper, even bogus authority letters were accepted to further transfer/ shift the responsibility on someone else instead of beneficial owners/directors and such process at NFML was completed by accused Uzair Abubakar and Mushtaq A. Qaiser.

5. It was further revealed that petitioners Inamuddin Marwat, Afaquddin, Shaukatullah and accused Imamuddin Marwat orchestrated a process of fraudulent registration in the name of their employees while accused Imamuddin Marwat got registered various other companies and firms for availing contracts in different departments including NLC, TCP, NFC and NFML for which he and his family were beneficial owners. He frequently misappropriated Government properties through contracts in pseudonymous names, printing fake letter heads, making fake/dubious stamps and placing front men to avail contracts and in case of disclosure or blacklisting of said firms, he used to register other firms through misrepresentation of particulars/fraudulent use of identification papers of his employees online NTNs or impersonations of other person ultimately implicating them in an offence actually committed by him. During investigation it was further revealed that shortage of 755,30 M. tons {15,106 urea bags} at Rakesh Godown, Karachi, was established by a Court appointed Commission as such NFML took over the possession on Court directions, which caused a massive loss to the Government exchequer, hence this reference.

6. Before arguing his petition on merits, Mr. Amer Raza Naqvi, learned counsel appearing on behalf of petitioner Gulsher Ahmed Chachar, submits that C.M.A. No. 21609 of 2018 was filed seeking direction to the respondent to place on record all correspondences made between petitioners and respondents, all proceedings conducted by the respondent at the Godowns of NFML with inspection memos and statements of persons recorded therewith, all proceedings of shifting of material from one Godown to the other and sale of such material, sale proceed and the relevant orders if any passed by respondent or any official of respondent including Chairman in this regard as necessary for arriving at a fair and just decision in the matter. Learned Special Prosecutor NAB submits that all relevant documents are available in the form of folders along with reference and the same were supplied to petitioner under the provision of Section 265-C, Cr.P.C. The charge has already been framed and some of the PWs have been examined by the learned trial Court, therefore, instant application is not maintainable. It is next submitted that similar application was filed before the trial Court, which is still pending. Since the petitioner has availed remedy and moved application before the learned trial Court, which is still pending, therefore, we deem it appropriate not to interfere with the subject issue and direct the trial Court to decide such application expeditiously in accordance with law. However, in case the petitioner has not sought such kind of prayer before the trial Court then law provides opportunity to him to seek remedy in accordance with law. Here we are dealing with the matter of bail, hence we are inclined not to decide such kind of prayer while deciding the petition for bail, which should be decided at first instance by the trial Court.

7. While arguing the petition on merits, Mr. Amer Raza Naqvi, learned counsel appearing on behalf of petitioner Gulsher Ahmed Chachar, submits that the petitioner has been falsely implicated in this case with malafide intention and ulterior motives; that at the time of commission of offence he was Port Incharge/Regional Manager, NFML Godowns, Karachi, and to ensure the swift moving of urea from Port to the Godowns after termination of the labour, security and tally contract of Messrs Afzal Enterprises, the petitioner recommended three companies and their bids for Tally contract, labour and security guards to his high-ups but his recommendations were not considered and he was directed to award contract to Messrs Sindh Goods Transport Company and on the directions of his superiors he awarded verbal contract to Messrs Sindh Goods Transport Company; that neither he has caused any loss to the national exchequer nor it is alleged in the reference that he is one of the beneficiary or gained monetary benefits and no money trail was discovered during entire investigation; that the petitioner being an honest and responsible officer performed his duties properly and timely informed the entire situation and all affairs of the company but his high-up were reluctant to take any action against the defaulter companies; that the petitioner performed his duties honestly and diligently and during entire investigation no iota of evidence has been collected against him to justify his involvement in the present case. Learned counsel lastly submits that in view of his submissions the case of the petitioner requires further inquiry. He has relied upon case law reported as 2000 MLD 1735.

8. Mr. Abdul Majeed Khoso, learned counsel for petitioner Afaquddin, submits that the petitioner is son of Imamuddin Marwat {accused No. 1}, who established a company in the name of Messrs Inam and Company when the petitioner was about 8/10 years of age and had nothing to do with the affairs of his father. It is next submitted that the petitioner has been shown as Director of Messrs Inam and Company, dealing with the labours, otherwise the petitioner has no nexus with Messrs Shahmeer and Company and Messrs Sindh Goods Transport Company; that at the time of alleged incident the petitioner was not in Pakistan and studying in London; that the bank accounts that have been relied on by the NAB do not pertain to petitioner even he has not signed any document in respect of opening of bank account as well as affairs of NFML and no documentary evidence has been collected against him during entire investigation to show his involvement in the commission of any offence and he has been dragged in this case just for the reason that he is son of Imamuddin Marwat {accused No. 1}, that the petitioner was arrested from Airport when he returned to Pakistan after completion of his studies at London; that the petitioner tendered his resignation from the post of Director of Messrs Inam and Company on 01.08.2013 and there was a private family settlement between petitioner and his father Imamuddin {accused No. 1} since 2013, even he was not business partner of his father and had nothing to do with the affairs of Messrs Inam and Company; that the petitioner neither has caused any loss to the Government exchequer nor gained any benefit. Learned counsel has referred to various documents pertaining to FBR, which show that his name was discharged from the array of directors of Messrs Inam and Company and prayed for grant of bail.

9. Learned counsel for petitioner Inamuddin Marwat has contended that he has been falsely implicated in this case with malafide intention and ulterior motives which is evident from the record that the whole family has been dragged by levelling false allegations without any documentary proof; that the petitioner is son of co-accused Imamuddin and brother of co-accused Afaquddin; that the petitioner is student of M. Phil and has nothing to do with the allegations levelled in the reference; that NFML made contract for transportation of imported urea with Messrs Sindh Goods Transport Company and Messrs Shahmeer Tally Labour and Security with which the petitioner had no nexus as neither he was Director of the said companies nor a beneficiary nor has caused any loss to the exchequer and if any loss is caused to the national exchequer the said companies and the officials of NFML are solely responsible and the petitioner has nothing to do with it; that no documentary evidence has been collected to show the link of the petitioner with the aforesaid two companies; that the father of the petitioner was owner/sole proprietor of Messrs Inam and Company since 1996 and at that time the petitioner was student and even at the time of signing of contract with NFML he was student of M.S. and never remained involved in the affairs of business; that the petitioner has nothing to do with the accounts of Messrs Inam and Company and he did not sign any document in respect of opening of bank account; that the petitioner has not signed any agreement with Government in respect of any contract, therefore, question of causing loss to the national exchequer does not arise; that he is neither a beneficiary nor any money trail has been connected with him; that he is a law abiding citizen and never remained fugitive of law and as soon as he came to know about filing of reference against him he surrendered himself before this Court and never misused the concession of ad-interim pre-arrest bail.

10. In contra, learned Special Prosecutor NAB has strongly opposed both pleas of grant of post arrest and pre-arrest bail to the petitioners on the ground that this Court as well as Hon’ble Supreme Court have already declined concession of bail on merits and the present petitions for grant of post arrest and pre-arrest bail have been filed without furnishing fresh ground; that accused Nos.1 to 6 are private persons and accused Nos.7 to 10 are officials of NFML and they in connivance with each other caused loss to national exchequer; that Messrs Inam and Company became a defaulter and thereafter private accused in connivance with officials of NFML established fake and dummy companies in the name and style “Messrs Sindh Goods Transport Company and Messrs Shahmeer Tally Labour and Security Company and in connivance with each other and in violation of PEPRA Rules got the contracts awarded to these fake and dummy companies, which caused heavy loss to national exchequer; that the modes operandi of private accused was that after becoming defaulter they used to establish fake and dummy companies and during investigation 39 companies were discovered having seals and letterheads etc. and having same address; that sufficient documentary evidence and other material is available on record against the petitioners, which prima facie connect them with the commission of offence. During investigation I.O. has recorded statements of Jumair Shah and other witnesses wherein they have fully implicated the accused nominated in the reference. No enmity in terms of malafide or ulterior motive has been alleged by the petitioners which might have actuated the prosecution to falsely implicate the petitioners.

11. We have given anxious consideration to the submissions of learned counsel for the petitioners and the learned Special Prosecutor NAB as well as perused the record with their able assistance.

12. Record reflects that vide letter dated 13.05.2013 petitioner Gulsher Ahmed Chachar, who was Port Incharge/ Regional Manager, NFML, placed quotations of three companies namely, Ittehad Enterprises, Ahmed Enterprises and Mashallah Enterprises, for Tally labour and security guards showing the lowest rate of Messrs Irfan Enterprises but without receiving any response thereto, he received a letter dated 14.05.2013 from co-accused Uzair Abubakar {acting General Manager, NFLM}. A bare perusal of the letter reveals that services of Messrs Afzal Enterprises were dispensed with due to inefficiency and to meet issue of stop gap measures forwarding the name of Messrs Sindh Goods Transport Company for the forthcoming shipment though no forthcoming shipment was scheduled on record and it seems that crime starts from this particular point. In fact accused {officials of NFML} tried to justify themselves to award contract to Messrs Sindh Goods Transport Company by disclosing the reason that they had a need for a stop gap arrangement for forthcoming shipment. The contract was awarded to Messrs Sindh Goods Transport Company on temporary basis by Gulsher Ahmed Chachar in connivance with co-accused Mushtaq A. Qaiser, Manager {Distribution}, NFML and other officials of NFML were also on board and petitioner Gulsher Ahmed Chachar had actively participated in the commission of offence in order to facilitate Messrs Sindh Goods Transport Company. Besides, he failed to enter into any formal agreement with Messrs Sindh Goods Transport Company and allowed it to operate on verbal basis and failed to discharge his liability of proper checking on the Godowns where the urea was being stolen from. Record also reflects that NFML ordered an inquiry in the matter of shortage of urea wherein he was found guilty of the charges levelled against him.

14. The object of pre arrest bail is to save innocent persons from being unnecessarily harassed due to their arrest in the cases instituted against them with malafide intention and ulterior motives. For grant of pre-arrest bail there must be some essential element about malafide on the part of complainant or the investigating agency and accused has to satisfy the Court on the point of malafide. The Hon’ble Supreme Court has settled the principle in the cases of Rana Muhammad Arshad v. Muhammad Rafique {PLD 2009 SC 427}, Mukhtar Ahmed v. The State and others {2016 SCMR 2064} and Khalil Ahmed Soomro and others v. The State {unreported dated 28.07.2017}. In the case in hand, no evidence of enmity in terms of malafideor ulterior motive is available on record, which might have actuated the NAB to falsely implicate petitioner Inamuddin Marwat in this case, even his counsel has failed to satisfy us on the point of malafide, ill-will, malice and/or ulterior motives, which is pre-requisite for pre-arrest bail.

1. Turning to the case of petitioners Inamuddin Marwat and Afaquddin on merits, who at the relevant time were the Directors of Inam and Company, and have been attributed specific role with regard to creation of fake and bogus companies, after Inam and Company was blacklisted, just to steal urea. Record reflects that co-accused Shaukatullah was operating four bank accounts on behalf of petitioners Inamuddin Marwat and Afaquddin, which were used in this scam and approximately one billion rupees was moved by him between the various accounts of petitioners Inamuddin Marwat and Afaquddin and their companies and even used his own account to route some of these monies just to hide the source of funds and at the time of raid cheque books in the name of Inam and Company containing blank cheques, duly signed, were recovered.

2. We have carefully gone through the investigation report available before us. PW J. Parkash, owner of brokerage firm “Anmole Enterprises”, dealing with the business of urea, and his firm had a business transaction with Haji Imamuddin, owner of Inam and Company, for about 2/3 years. Haji Imamuddin sold them urea and sometimes Inam and Company delivered them the consignment directly from the ship at port and sometimes supplied urea from the Godowns of NFML and he used to make payment through online transactions and sometimes through cheques and accused Imamuddin and Shaukatullah used to enter into the deals with him. This witness has further stated that he visited the office of NFML for dealership and met with petitioner Gulsher Chachar who demanded commission for grant of dealership, however, he has fully implicated petitioners Gulsher Ahmed Chachar, Inamuddin and accused Haji Imamuddin and Shaukatullah in the commission of offence not only in his statement under Section 161, Cr.P.C. but also in his deposition recorded before the trial Court. PW Matloob Ahmed, who is banking expert, pointed out various transactions between fake and dummy companies with private accused. He had collected complete money trail of the amounts channeled from one account to other account and directly involved petitioners Inamuddin, Afaquddin and accused Haji Imamuddin and Shaukatullah as beneficiaries of such accounts. PW Jumair Shah in his statement under Section 161, Cr.P.C. has stated that he worked as driver with Messrs Inam and Company for three months and owner of company Imamuddin wrongly used his CNIC as well as cell number and committed huge fraud in connivance with officials of NFML. He further stated that Mr. Shaukatullah, Manager of Messrs Inam and Company, was dealing with the affairs of company and he got no other benefit except that of his salary amounting to Rs.10,000/- only for three months and later on he came to know that Imamuddin had committed fraud on his name by registering company “Messrs Sindh Goods Transport Company and he had not signed any document. It is manifest from the record that the private accused persons in connivance with officials of NFML got registered different companies viz Messrs Inam and Company, Messrs Inam and Company {Pvt.} Limited, Messrs Afzal Enterprises, Messrs Sindh Goods Transport Company, Messrs Shahmeer Tally Labour and Security Company and petitioners Inamuddin and Afaquddin being Directors are responsible for all acts of the company. It is also a matter of record that accused persons got registered another firm in the name and style “Messrs Global Gas International {Pvt.} Limited” and petitioner Afaquddin was appointed as Director on 31.10.2013 while petitioner Inamuddin was Secretary as well as Director and co-accused Imauddin was Chief Executive as well as Director. The point which is to be noted is that address of all the companies, where petitioners Inamuddin, Afaquddin and co-accused Imamuddin were the directors/partners, is same and all the documents and correspondences disclose the same address. This shows their modus operandi to cheat the system by making/ registering new dummy firms just to continue their fraudulent acts and looting national exchequer.

17. Insofar as the contention of learned counsel for petitioner Afaquddin that at the time of occurrence petitioner was out of country is concerned, we have gone through the investigation report which reveals that at the relevant time when the occurrence of Messrs Sindh Goods Transport Company and Messrs Shahmeer Tally Labour and Security were taken place the petitioner was in Pakistan. Besides, the documents with which Bank Account No. 58702024032101 was opened in the name of Inam and Company and bank transactions show signatures of petitioners Inamuddin and Afaquddin, which prima facie established their active participation in the affairs of Messrs Inam and Company as well as beneficiaries of transactions in their favour. Apart from this various telephone bills are available on record in the name of Messrs Inam and Company. During investigation the I.O. prepared seizure memo in presence of mashirs under which different letter pads, seals, cheque books, cash books and other documents were seized, which show that private accused persons were indulged in illegal business via fake and dummy companies.

18. We have noticed that the white collar crimes are generally of an intricate and complex nature and the whole transaction and each component part of the scam needs proper adjudication. A case of further inquiry would only be made out when data collected by the prosecution was not sufficient to provide reasonable grounds for believing that a prima facie case does not exist against an accused. A person employed in Government department is paid to serve the State/Province out of taxpayer’s money and has a special fiduciary duty to protect and safeguard Government property and to ensure that taxpayer’s money and property is well spent and not squandered needlessly or misappropriated through corruption in performing their duties and functions. In the recent past the Hon’ble Supreme Court in a case of Rai Mohammad Khan v. NAB {2017 SCMR 1152} emphasized that grant of bail in white collar crimes must be construed strictly and rigidly even if, as in that case referred to above, the amount involved was on the lesser side being only approx. Rs.12 million {as opposed to over Rs.100 million in this case} and as such we have adopted the said approach.

19. From the facts and circumstances of the case and available material it can be assumed that all the petitioners had the requisite mens rea to commit the offence charged with through their acts, conduct, failure to exercise authority, misuse of authority and deliberately violating the rules. It is however finally upto the trial Court to decide the mens rea of accused petitioners after recording the evidence in the matter.

20. At the stage of bail the detailed discussion is not necessary but as far as the evidence which is on the surface of record of this case shows that petitioners are prima facie involved in the commission of offence. They are nominated in the reference and attributed a specific role. No evidence of enmity in terms of malafide or ulterior motive is available on record, which might have actuated the prosecution to falsely implicate the petitioners. Needless to mention that petitions for pre-arrest bail of petitioner Gulsher Ahmed Chachar, and post arrest bail of petitioner Shaukatullah, on the same sets of grounds, have already been declined by this Court on merits by order dated 28.03.2018 and the Hon’ble Supreme Court too dismissed the petition for pre-arrest bail of Gulsher Ahmed Chachar on merits by order dated 06.04.2018. Thus, we are of the considered view that the petitioners do not deserve concession of bail at this stage. Consequently, the petitions of Gulsher Ahmed Chachar and Afaquddin for post arrest bail are dismissed. The petition of Inamuddin Marwat for pre-arrest bail is also dismissed simultaneously recalling the earlier order of granting ad-interim pre-arrest bail with immediate effect. We may add here that

the matter is ripe for evidence and upto 23.10.2018 three witnesses have been examined as informed by the trial Court. The object of criminal trial is to make an accused to face the trial and not to punish an under trial prisoner for the offence alleged against him and accused is entitled to expeditious excess to justice which includes a right to fair and expeditious trial without any unreasonable delay, therefore, we are optimistic that the trial Court would expedite the matter and complete the trial preferably within a period of four {04} months under intimation to this Court through M.I.T-II. Office shall provide a copy of this order to the concerned Accountability Court for compliance.

1. Before parting with the order, it needs no clarification that the observations recorded herein above are tentative in nature and relevant for the purpose of the instant Petitions, therefore, the trial Court shall not be influenced in any manner whatsoever while deciding the case on merits.

2. The petitions stand disposed of in the above terms.

(Y.A.) Petition disposed of

PLJ 2020 Karachi 25 (DB)Present : Mohammad Ali Mazhar and Agha Faisal, JJ.

MUHAMMAD FAROOQ--Appellant

versus

M/s. SILK BANK LIMITED & Others--Respondents

First Appeal 50 of 2018, decided on 23.4.2019.

Constitution of Pakistan, 1973--

----Art. 212(3)--Civil Procedure Code, 1908, O. XXI, R. 90--Suit for recovery--Decreed--Execution Application--Auction of mortgaged property--Conducting of auction proceedings--Settlement judgment debtors and decree holder bank outside Court--Availing of settlement--Application for withdrawal of execution proceedings--Allowed--Rights of auction purchaser--Challenge to--Settlement between judgment debtors and decree holder bank was recognized in O. XXI R. 90 Order--It is an admitted fact that appellant has never impugned O. XXI R. 90 Order--It is observed that Impugned Order followed O. XXI R. 90 Order and gave effect to settlement that was already provisioned for in preceding order--It is relevant to observe at this juncture that failure of appellant to assail O. XXI R. 90 Order casts a prejudicial shadow upon present appeal--With regard to issue of vested rights, it is trite law that rights of an auction purchaser only crystalize upon fall of hammer--Appeal was dismissed. [Pp. 29 & 30] A, B & C

2019 SCMR 321, ref.

Mr. Shahzaib Akhtar Khan, Advocate for Appellant.

Ms. Alizeh Mahak, Advocate for Respondent No.1.

Mr. Khaleeq Ahmed, Advocate for Respondent Nos. 3 & 4.

Date of hearing : 3.4.2019

Judgment

Agha Faisal, J.--Present appeal has been filed by an auction participant against the order dated 21.04.2018 (“Impugned Order”), passed in Execution 15 of 2016 (“Execution”), contents whereof are reproduced herein below:

“Learned advocate for the decree holder has filed statement accompanied with the bank letter No. SBL/SAMG(S)/SAK/ 2018/040 dated 9th April, 2018 stating as under:--

“It is most respectfully and most humbly submitted on behalf of the Decree holder, that since the parties have settled their dispute out of Court, therefore the instant Execution Application is being withdrawn, and the same may be dismissed as being ‘not pressed’ by this Honourable Court”.

1. The brief facts of the case are that the auction / sale was conducted on 16-05-2017 against the property under mortgage bearing Plot No.285-A, 286-A, 287-A and 339-A (Each Plot 140 Square Yards) Hawkesbay truck stand Karachi, and three persons participated in the auction proceedings among them one Muhammad Farooq Son of Muhammad Zameer offered the highest bid of Rs.157,00,000.00. He has paid 25% of bid amount of Rs.4,000,000.00 through pay order Nos.1431838, 00000298, 00000300 & 00000299 thereafter, as per report of Nazir, the auction purchaser deposited the total amount of Rs.157,00,000.00 within the prescribed time. In the meantime the legal heirs of J.D No.3 moved the objections under Section 19(7) of the FIO, application u/o XXI Rule-90 CPC & application dated 19.12.2017 along with 5% of the sale proceeds / bid money and the decree holder filed application u/o XXXIV Rule-5 r/w Section 151 CPC, all these applications were heard and were dismissed as infructuous vide order dated 27.2.2018 while the application dated 19.12.2017 filed along with 5% of the bid money was kept pending. The decree holder has also filed application under Section 151 CPC with the prayer to adjourn the present execution sine-die which was also dismissed on 27.2.2018. The present statement seeking withdrawal of the execution has been filed on 10.04.2018. The notice has been waived by the auction purchaser.

2. I have heard the learned advocate for Decree holder advocate for the legal heirs of judgment debtor No.3 and advocate for the auction purchaser. The learned advocate for decree holder relied upon 2007 CLD 698, learned advocate for judgment debtor relied upon 2007 CLC 698 & 1409, 2005 CLD 967, 2017 CLD 1158, 2007 CLD 698, 2014 MLD 192, 2009 CLD 1056 and learned advocate for auction purchaser relied upon 2016 CLD 480, 2007 CLD 1511, I have also perused the case file along with case law.

3. The learned advocate for the auction purchaser opposed the withdrawal of the Execution on the ground that settlement reached between the bank and the borrower outside the Court is not binding upon executing Court and further that the property has been auctioned and he prayed to confirm the auction. Admittedly it is settlement between financial institution and the borrower/ J.D outside the Court but judgment debtor cannot be restrained from the entering into settlement with the financial institution just to save his property from being disposed of to third party by way of auction which has not yet been confirmed, moreover it is settled law that the Execution proceedings can be withdrawn by the decree holder at any stage.

4. In view of above reasons given in the preceding Paragraph No.4, the Execution Application No.15/2016 stands dismissed as withdrawn and this order application dated 19.12.2017 filed along with 5% of the bid money stands disposed of, consequent thereto the highest bidder offered by one Muhammad Farooq S/o Muhammad Zameer is rejected. Nazir directed to return the bid money together with 5% of bid money (deposited by the judgment debtor) to the auction purchaser. The case law relied upon the learned advocate for auction purchaser, referred in the Paragraph No. 3, is quite distinguishable on the facts & circumstances of this case.”

5. Mr. Shahzaib Akhtar Khan, Advocate represented the appellant and submitted that the Impugned Order was prima facie in negation of Order XXI Rule 92 CPC, hence, ought to be set aside forthwith. Per learned counsel, Suit 263 of 2010 (“Suit”) was filed before the learned Banking Court IV at Karachi and the same was decreed against the judgment debtors. It was submitted that pursuant thereto the mortgaged property was sought to be sold vide auction and the appellant participated in the said process and was the highest bidder in such regard. Per learned counsel no application was ever filed by the judgment debtors under Rules 89 or 90 of Order XXI CPC and notwithstanding the foregoing the learned Banking Court kept the matter pending for one year. Learned counsel submitted that the decree holder bank and judgment debtors entered into an out of Court agreement to settle the judgment and decree and on the basis of such settlement the execution proceedings were permitted to be withdrawn. It was argued that an out of Court settlement was no grounds for setting aside the execution proceedings, as vested rights of an auction participant/purchaser had already intervened and such rights could not be disregarded by the Court. It was further argued that only avenue to set aside an auction is pursuant to Rules 89 and 90 of Order XXI CPC and no such avenue was availed by the judgment debtors.

6. Mr. Khaleeq Ahmed, Advocate appeared on behalf of the Respondent Nos.3 & 4 and submitted that the said judgment debtors had in fact preferred an application under Order XXI Rule 90 in the Execution, however, the same was dismissed vide order dated 27.02.2018 (“O.21 R. 90 Order”). Learned counsel submitted that the judgment debtors were specifically permitted vide the aforesaid order to conclude the settlement with the decree holder bank and the same is apparent from the bare perusal of the said order. It was argued that the auction in respect of the mortgaged property was never concluded as no confirmation of sale was ever issued by the learned Banking Court. It was further argued that there is preponderance of case law which recognized the rights of the auction purchaser once such rights had been crystalized by virtue of appropriate orders of the Court and the same is admittedly not the case herein. In conclusion, it was argued that present appeal is without merit and it is an admitted fact that judgment and decree has already been satisfied and thus the Execution already stands withdrawn.

7. Ms. Alizeh Mahak, Advocate appeared on behalf of the decree holder bank, Respondent No.1 herein, and submitted that the present appeal was misconceived and even otherwise devoid of merits. Learned counsel argued that it is apparent from the paragraph 4 of the memorandum of appeal that the appellant was aware of the application filed by the judgment debtors under Order XXI Rule 90 CPC before the learned Banking Court. It was further argued that decree holder bank was well within its rights to seek an out of Court settlement with the judgment debtors and the same that was rightfully recognized vide Impugned Order. Learned counsel categorically submitted that the decretal amount was twice the value of the mortgaged property, hence, it was just and proper for the decree holder bank to avail the settlement of its entire liability in one go by accepting the decretal amount directly from the judgment debtors themselves. Learned counsel submitted that no right has crystalized in favour of the appellant, hence, he was ineligible to claim any entitlement to the mortgaged property, especially in view of the fact that the judgment and decree stood satisfied and the Execution proceedings stand withdrawn.

8. Mr. Shahzaib Akhtar Khan, Advocate accepted in rebuttal that an application under Order XXI Rule 90 CPC was in fact filed, however, submitted that said application was discrepant from its very inception, since the amount required to be deposited therewith was never deposited in fact. Learned counsel referred to the O. XXI R. 90 Order and submitted that last paragraph thereof was otherwise than in accordance with law as the learned Banking Court had no authority to provision for settlement taking place between the decree holder and the judgment debtors.

6. We have considered the arguments of the respective learned counsels and observe at the very onset that the settlement between the judgment debtors and decree holder bank was recognized in O. XXI R. 90 Order. It may be appropriate to reproduce the relevant constituent of the aforesaid order herein below:

“In view of above discussions and reasons given in the preceding Paragraph No. 5 to 7 the objections under Section 19 (7) of the Financial Institutions Ordinance, 2001, together with application u/O XXI Rule-90 CPC filed by the legal heirs of J.D No. 3 and application u/O XXXIV Rule-5 r/w Section 151 CPC filed by the decree holder having become infructuous stand dismissed. It in case the legal heirs of J.D No. 3 failed to clear the liability by 15th March, 2018 as per settlement then the appropriate order will be passed on the auction on next date of hearing i.e. 20.03.2018. The case law relied upon by learned advocate for auction purchaser referred in the preceding Paragraph No. 4 is quite distinguishable on the facts and circumstances of the case.”

7. While the appellant’s claims to have been aggrieved primarily on the basis of the settlement vitiating the auction proceedings, it is an admitted fact that the appellant has never impugned the O.21 R. 90 Order. It is observed that the Impugned Order followed the O.21 R. 90 Order and gave effect to the settlement that was already provisioned for in the preceding order. It is relevant to observe at this juncture that the failure of the appellant to assail the O.21 R. 90 Order casts a prejudicial shadow upon the present appeal.

8. With regard to the issue of vested rights, it is trite law that rights of an auction purchaser only crystalize upon the fall of the hammer. Learned counsel for the Respondent Nos.3 & 4 had drawn our attention to the recent pronouncement of the honorable Supreme Court in case of Muhammad Khalil vs. Faisal M.B. Corporation & Others reported as 2019 SCMR 321, wherein it was categorically observed that valuable rights cannot be deemed to have accrued in favour of a person by virtue being the highest bidder and or even having deposited the entire sale price in Court. The honorable Supreme Court maintained that it needs no reiteration that an auction is always subject to confirmation by the Court and till such time such confirmation is granted no vested right can be claimed in the property subject to auction in favour of an auction participant / purchaser. Ijaz-ul-Ahsan, J concluded in the aforesaid judgment that when the executing Court does not confirm the auction no vested rights accrue in favour of an auction purchaser. This authority is applicable squarely to the present facts and circumstances and it is thus maintained that the present appeal is not sustainable, hence, is hereby dismissed, along with pending application, with no order as to costs.

(Y.A.) Appeal Dismissed

PLJ 2020 Karachi 30 (DB)

Present: Muhammad Iqbal Mahar and Amjad Ali Sahito, JJ.

Mst. AFROZE--Petitioner

versus

PROVINCE OF SINDH through SECRETARY HOME DEPARTMENT SINDH SECRETARIAT KARACHI & 4 others--Respondents

C.P. No. D-1791 of 2017, decided on 06.11.2018

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, 1898, S. 176(2)--Constitutional Petition--Registration of FIR for murder of deceased against his wife--Allegation of poison--Cause of death--Application to disinterment dead body of deceased--Dismissed--Revision Petition--Allowed--Challenge to--Respondent No.4/complainant has leveled allegations against widow and children of deceased that they did not provide proper treatment to deceased and administered poison but there is no eye witness account of incident--Material placed on record by petitioner reflects that deceased Altaf Hussain was a cardio patient and was regularly getting treatment from Patel Hospital Karachi--As per death certificate issued by Patel Hospital, deceased died on 11.06.2016 at 3.00 pm and cause of death given in death certificate is Respiratory Failure--There is no ambiguity in cause of death of deceased Altaf Hussain, therefore disinterment of his dead body after two years would not serve any purpose--Heirs of deceased Altaf Hussain and Respondent No.5, sister of deceased and Respondent No.4/complainant, has also opposed disinterment of body--Furthermore, investigating officer, during his investigation, also came to conclusion that no such incident has taken place, hence he disposed of case under 'C class and submitted such report before learned Magistrate which has been approved--We are of considered view that impugned order passed by learned IV-Additional Sessions Judge Mirpur Mathelo is not sustainable under law as there is no justification to disinterment dead body--Petition was allowed. [Pp. 32 & 33] A & B

Mr. Shahnawaz Waseer, Advocate for Petitioner.

Mr. Wazeer Ahmed Ghoto, Advocate for Respondent No. 4.

Mr. Zulfiqar Ali Jatoi, Addl. PG. for State.

Date of hearing : 30.10.2018.

Order

Muhammad Iqbal Mahar, J.--Through instant constitution petition, the petitioners have challenged the order dated 12.09.2017 passed by learned IV-Additional Sessions Judge Mirpur Mathelo in Crl. Rev. No. 01/2017 whereby he set aside the order dated 07.02.2017 passed by learned II-Civil Judge and Judicial Magistrate Mirpur Mathelo on application of Respondent No.4/complainant filed u/s 176-2 Cr.P.C.

1. The relevant facts are that Respondent No. 4/complainant lodged an FIR No. 161/2016 at PS, Mirpur Mathelo for the murder of deceased Altaf Hussain against the wife of deceased Altaf Hussain and others. Respondent N.4/complainant filed an application u/s 176(2) Cr.P.C before learned IInd Civil Judge and Judicial Magistrate Mirpur, to disinterment the dead body of deceased Altaf Hussain which was dismissed, hence she filed revision application before the Court of learned IV-Additional Sessions Judge Mirpur Mathelo which was allowed and order of learned Magistrate was set aside, hence instant petition.

2. It is inter alia contended by learned counsel for the petitioner that the impugned order passed by learned IV-Additional Sessions Judge is against the law; that learned Judge while passing the impugned order has greatly erred; that the allegations leveled against the petitioner are false and fabricated; that in fact the deceased was regular patient of Patel Hospital Karachi and had died in the same Hospital; that the death certificate issued by Hospital administration reveals the cause of death, hence there is no necessity of disinterment of the grave of the deceased Altaf Hussain after two years of his death, therefore he prayed for setting aside the impugned order.

3. On the other hand, learned counsel for Respondent No.4/complainant supported the impugned order on the ground that deceased Altaf Hussain died due to poison administered by the petitioner; therefore without exhumation and post mortem the cause of death cannot be ascertained.

4. Learned Addl.P.G did not support the impugned order and submitted that order passed by learned Magistrate is legal and lawful. He further submitted that the case crime No. 161/2016 has already been disposed of under 'C' class hence no purpose would be served if instant petition is dismissed.

5. Respondent No. 5, the sister of Respondent No.4/complainant and deceased Altaf Hussain submitted that the deceased died in Patel Hospital Karachi due to respiratory failure but her sister, the Respondent No. 4, lodged false FIR in order to drag the children of deceased in the case.

7. Heard learned counsel for the parties and perused the record. It is observed that the complainant/Respondent No.4 is resident of Mirpur Mathelo whereas the alleged incident has taken place at Karachi. The Respondent No.4/complainant has leveled allegations against the widow and children of deceased that they did not provide proper treatment to deceased and administered poison but there is no eye witness account of the incident. The material placed on record by the petitioner reflects that the deceased Altaf Hussain was a cardio patient and was regularly getting treatment from Patel Hospital Karachi. As per death certificate issued by Patel Hospital, the deceased died on 11.06.2016 at 3.00 pm and cause of death given in the death certificate is Respiratory Failure. There is no ambiguity in the cause of death of deceased Altaf Hussain, therefore disinterment of his dead body after two years would not serve any purpose. The heirs of deceased Altaf Hussain and Respondent No.5, the sister of deceased and Respondent No.4/complainant, has also opposed the disinterment of the body. Furthermore, the investigating officer, during his investigation, also came to the conclusion that no such incident has taken place, hence he disposed of the case under 'C class and submitted such report before learned Magistrate which has been approved.

4. For what has been discussed above, we are of considered view that the impugned order passed by learned IV-Additional Sessions Judge Mirpur Mathelo is not sustainable under the law as there is no justification to disinterment the dead body. Accordingly instant petition is allowed and the impugned order passed by IV-Additional Sessions Judge is set aside.

(MMR) Petition Allowed

PLJ 2020 Karachi 33 (DB)

Present:Muhammad Ali Mazhar and Agha Faisal, JJ.

MUHAMMAD MUSHTAQUE and others--Petitioners

Versus

FEDERATION OF PAKISTAN through SECRETARY MINISTRY OF NATIONAL HEALTH SERVICES and others--Respondents

C. Ps. Nos. D-187, D-334 and D-1119 of 2019, decided on 13.3.2019.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Advertisement regarding admission in M.B.B.S. and B.D.S.--Circulation of admission policy--Priority of a province--Applicability of policy--Imposing of complete bar--Maintainability--Challenge to--There is no absolute or explicit bar that students outside Province of Sindh may not apply for admissions in Sindh--Therefore, in order to cope with and manage situation levelheadedly, PM&DC took decision in their meeting that first priority of a province/region should be given to local candidates of respective province/region and vacant seats if any may be filled from amongst candidates of other provinces--The policy decision of PMDC is applicable across board and we have been told that this policy has been adhered to by all provinces for granting admissions in their universities and colleges--We reiterate that PMDC decision did not impose a complete bar but priority is to be given first to local students/ candidates and this was reason that learned counsel for admitting university had given a clear statement that after granting admissions to students residing in Province of Sindh, petitioners will also be considered as per merit if some seats are remained vacant which is a quite fair and reasonable statement within precincts of PMDC decision--We do not find any justification to interfere in decision of PM&DC nor we find out any discrimination if policy decision applies in all provinces with same criteria, hence petitions were not maintainable--Petitions were dismissed. [Pp. 36, 37 & 38] A, B, C, D & E

M/s. Sajjad Qadir Awan and Muhammad Ajmal, Advocates for Petitioners (in C.P. No. D-187 of 2019).

M/s. Khalid Mehmood Siddiqui and Ghulam Rasool Korai, Advocates for the Petitioner (in (C.P. No. D-334 of 2019).

M/s. Zuhaib Ahmed and Naimatullah Soomro, Advocates for the Petitioner (in C. P. No. D-1119 of 2019).

Mr. Suhail H.K. Rana, Advocate for PMDC (in C.Ps. Nos. D-334 of 2019 and D-1119 of 2019).

Mr. Abdul Waheed Siyal, Advocate for JSMU.

Mr. Arif, Advocate for Respondent No. 2 (in C.P. No. D-187 of 2019).

Mr. Ghulam Mujtaba Saheto, Advocate for Baqai University.

Mr. Ishrat Zahid Alvi, Assistant Attorney General, Mr. Anwar Alam, Officer Incharge PMDC Karachi.

Prof. Atta-ur-Rehman, Deputy Director (Admissions), JSMU

Dr. Abdul Rehman Rajput, Deputy Director Admissions Cell, JSMU.

Date of hearing: 13.3.2019.

Order

Muhammad Ali Mazhar, J.--The aforesaid petitions have been brought to seek directions against the Jinnah Sindh Medical University (Admitting University) to include the names of the petitioners in the merit list for their admissions in the MBBS and BDS for the Academic Session 2018-2019. Admittedly, the petitioners in the aforesaid petitions have the domiciles of different places outside the Province of Sindh.

1. The brief facts of the case are that according to the public notice published in the newspapers by the Jinnah Sindh Medical University, Karachi (Admitting University) for admissions in MBBS and BDS for Academic Session 2018-19 in pursuance of Pakistan Medical and Dental Council (PM&DC) MBBS and BDS (Admission, House Job and Internship Regulation 2018), a centralized admissions policy was evolved and expounded for all public and private sector medical and dental universities and colleges by the admitting university of the respective province/region and Jinnah Sindh Medical University Karachi was declared admitting university for the current academic session which invited applications for admissions in the public and private sector medical and dental institutions of Sindh.

2. The learned counsel for the petitioners argued that there is no such condition in the advertisement that students having domiciles outside the province of Sindh would not be eligible to apply, however, he admitted that the petitioners could not be considered for the admissions in the MBBS and BDS in the colleges located at the place of their domiciles due to insufficient percentage.

3. The learned counsel for the petitioners further argued that there is a sheer discrimination and despite having the domiciles outside the Province of Sindh the petitioners are entitled to get the admissions in the MBBS or BDS for the academic session 2018-19 in Sindh and the policy decision of the PMDC in this regard is unlawful and unconstitutional which seriously infringed the fundamental right of petitioners.

4. The Pakistan Medical and Dental Council and Jinnah Sindh Medical University (Admitting University) have filed their comments and basically they relied on the admission policy circulated by the Pakistan Medical and Dental Council to the Vice Chancellor of Jinnah Sindh Medical University (admitting university). In the letter dated 30.11.2018 the Acting Registrar, PM&DC reproduced the decision taken by the Council in its 186th Session held on 29.10.2018. For the ease of convenience, the letter is reproduced as under:

“Prof. Dr. Tariq Rafi, Dated: 30th November, 2018 Vice Chancellor Jinnah Sindh Medical University, Rafiqui H.J Shaheed Road Karachi.

Subject: ADMISSION IN PRIVATE COLLEGE.

I am directed to refer your e-mail received dated 26th October, 2018 on the subject cited above. It is informed that the Council in its 186th session held on 29th October, 2018 considered the matter and decided as under:-

“The Council after having detailed deliberation unanimously decided that 1st priority in any private medical colleges of a province/region should be given to local candidates of respective province/region and vacant seats if any may be filled from amongst the candidate of other provinces.

Further a committee was constituted comprising of following under the Chairmanship of President, PM&DC to devise a mechanism to standardized the entry test from next year.

1. Vice Chancellor, KMU, Peshawar

2. Vice Chancellor, UHS, Lahore

3. Vice Chancellor, JSMU, Karachi

4. Vice Chancellor, NUMS, Rawalpindi

5. Vice Chancellor, BUMS, Quetta”

Respectful regards. Sd./- Mrs. Sara Rubab Acting Registrar”

6. The decision of the PM&DC makes it unequivocally clear that there is no absolute or explicit bar that the students outside the Province of Sindh may not apply for admissions in Sindh, however, the learned counsel for the admitting university informed us that in the Province of Sindh already thousands of students appeared in the pre-qualification test (NTS) and cleared their test against the limited seats and if all number of seats available including the Government and private medical universities and colleges for MBBS and BDS are taken into consideration in totality, even now, the number of seats are insufficient to accommodate all the students and the same situation is being faced in other provinces, therefore, in order to cope with and manage the situation levelheadedly, the PM&DC took the decision in their meeting that first priority of a province/region should be given to the local candidates of respective province/region and vacant seats if any may be filled from amongst the candidates of other provinces.

1. The counsel for the PM&DC and the admitting university in one voice confirmed that the same criteria is being followed by the other provinces where also the first priority has been given to the local candidates for their admissions and the policy decision of the PM&DC has been applied across the board with the same spirit without any element of discrimination or bias.

8. It is well settled exposition of law which is time and again envisioned in the dictums laid down by the superior Courts in which doctrine of classification has been judicially accepted as an integral part of the equal protection clause. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis but it is essentially arbitrary. The guaranty of equal protection of the laws means the protection of equal laws though it forbids class legislation but it does not forbid classification which rests upon reasonable grounds of distinction. The principle is well recognized that a state may classify persons and objects for the purpose of legislation and makes laws applicable only to persons or objects within a class. In the case in hand the decision taken by PMDC demonstrates a reasonable classification based on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out and that the differentia giving priority or preference to the local students of each province separately has rational nexus to the objects sought to be achieved by the aforesaid classification. What is unreasonable in one given set of circumstances may well be reasonable in another different set of circumstances. The policy decision of PMDC is applicable across the board and we have been told that this policy has been adhered to by all the provinces for granting admissions in their universities and colleges. The Courts always slow in interfering with the policy decision of the authority so long the policy decision is within the domain of jurisdiction of such authority and it is not possible for the Court to sit on the judgment over such action if it does not appear that such policy decision is based on colorful exercise of power, mala fide, discriminatory or in abuse of power. The expression as envisaged in Article 25 of the Constitution means that no person or class of persons is denied the same protection of laws which is enjoyed by other persons or other class of persons in like circumstances in respect of their life, liberty, property or pursuits of happiness. Mere differentiation and inequality of treatment would not per se amount to discrimination unless selection or differentiation is shown to be unreasonable or arbitrary. We reiterate that PMDC decision did not impose a complete bar but priorty is to be given first to local students/ candidates and this was the reason that the learned counsel for the admitting university had given a clear statement that after granting admissions to the students residing in the Province of Sindh, the petitioners will also be

considered as per merit if some seats are remained vacant which is a quite fair and reasonable statement within the precincts of PMDC decision.

9. We do not find any justification to interfere in the decision of the PM&DC nor we find out any discrimination if the policy decision applies in all provinces with the same criteria, hence the petitions were not maintainable. We had dismissed these petitions vide our short order dated 07.03.2019 in the following terms:

“For the reasons to be recorded later the petitions are dismissed. However, learned counsel for the admitting university has given a clear statement that after granting admissions to the students residing in the Province of Sindh, the petitioners will also be considered as per merit if some seats are remained vacant.”

Above are the reasons of short order.

(Y.A.) Petitions dismissed

PLJ 2020 Karachi 38

Present:Muhammad Ali Mazhar and Adnan Iqbal Chaudhry, JJ.

Messrs GAAZA BROADCAST SYSTEM PVT. LTD. through Authorized person and others--Petitioners

versus

FEDERATION OF PAKISTAN through Ministry of Information and Broadcasting Pakistan and others--Respondents

Const. Ps. Nos. 62 and 63 of 2012, decided on 12.2.2019.

Constitution of Pakistan, 1973--

----Art. 4, 25 & 199--Pakistan Electronic Media Regulatory Authority Ordinance, 2002, S. 2--Application for issuance of licenses--Pendency of application within prescribed period--Security clearance--Withholding of license--Discrimination--Retrospective effect--No doubt under Ordinance 2002, no penal consequences are provided in case application is not decided by PEMRA within one hundred days but at same time purpose of this cutoff date and excuses offered to give good reason for delay necessitate some attentiveness and concentration to thresh out actual purpose of this deadline/cutoff date--The purpose of providing no penal consequences does not mean simpliciter to keep application pending at rest and leisure of Authority beyond one hundred days but this is a serious business for which an onerous duty has been imposed on authority under law to discharge their responsibilities and duties in accordance with law and in fair and transparent manners--We do not ruminate it appropriate that since no consequences are provided, therefore, PEMRA may keep application pending for an unlimited period of time--It is not a basic theme and idea of law that applications should be filed and authority may delay applications to respond for number of years--Minutes of 62nd meeting of Pakistan Electronic Media Regulatory Authority demonstrated that meeting of authority was convened on 12.05.2010--In Item No. 5, authority approved issuance of Satellite T.V. license to eight companies--Here we would like to observe that in security clearance petitioners have no role to play as this is purely internal matter of PEMRA to send credential and antecedents of applicant to concerned Agency or Agencies for Security Clearance and keep follow up for an early response and report--Every statutory body or public functionary is supposed to function in good faith, honestly and within precincts of their powers so that person concerned should be treated in accordance with law as guaranteed by Article 4 of Constitution--Petitions were disposed off. [Pp. 44, 45, 46 & 50] A, B, C, D, E & G

Constitution of Pakistan, 1973--

----Art. 25--Equal treatment--Consistent with Article 25 of Constitution, Equal treatment means equal treatment in midst of persons who are evenly positioned or fit to same class of people.

[Pp. 49 & 50] F

M/s. Arshad M. Tayebaly and Amel Khan Kasi, Advocatesfor Petitioners.

Mr. Kashif Hanif, Advocate for Respondents Nos. 2 to 5.

Mr. M. Zahid Khan, Assistant Attorney General.

Date of hearing: 4.9.2018.

Order

Muhammad Ali Mazhar, J.--These Constitution Petitions have been brought by the petitioners for entreating declaration that act of non-issuance of Satellite T.V Channel Licenses within the mandatory period of hundred days as stipulated under Section 22 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 is illegal, unconstitutional and without lawful authority. The petitioners have also implored for the writ of mandamus against the Respondents Nos. 2 to 5 to issue Satellite T.V Channel License “G.KA Boom” to the petitioner in C.P. No. D-62 of 2012 and “Indus News” to the petitioner in C.P. No. D-63 of 2012.

1. The brief facts of the case are that the petitioners submitted applications under the provisions of Pakistan Electronic Media Regulatory Ordinance, 2002 to the Respondent No. 2 in 2004 for issuance of licenses but PEMRA failed to decide the applications within the period of hundred days as required under Section 22 of the PEMRA Ordinance, 2002.

2. The learned counsel for the petitioners argued that applications were moved to the PEMRA in 2004. The petitioners also made fee/charges from time to time for temporary up linking of the channel. A group company (Indus TV Network Private Limited) was granted a non-exclusive license to establish a Satellite Television (International Scale) Channel “Indus Music” for a period of fifteen years vide License dated 25.03.2004. It was further contended that the petitioners have completed all formalities for the licenses and PEMRA received NOC/Security Clearance from Ministry of Interior, Govt. of Pakistan. The security clearance was accorded in response to Respondent No. 2’s letter addressed to the Ministry of Interior. He further argued that PEMRA itself belatedly sent the request for security clearance in the month of May, 2010 whereas the applications were processed in 2004. Many reminders were sent with the request to grant the licenses but no action was taken. However on 24.05.2011, a letter was sent by PEMRA that they have stopped issuing additional Satellite TV channel licenses and decided to award further satellite TV channel licenses through open bidding so the petitioners may apply when the bidding is advertised in the newspapers. The petitioners in response emphasized that they had complied with all procedural formalities and paid significant amount. The petitioners also pointed out that the new policy would not apply to the petitioners’ case as they had applied and paid the process fee way back in 2004. Again vide letter dated 15.6.2011, PEMRA informed the petitioners that in pursuance of the decision taken in Authority’s 65th meeting, they have stopped issuing further licenses. The learned counsel argued that the stance taken by the Authority in withholding the license of the petitioners is not only misconceived and illegal but clearly discriminatory. He specifically referred to Section 22 of the PEMRA Ordinance which provides that the authority shall take decision on the application for a license within one hundred days from the receipt of the application. The learned counsel referred to a case reported in PLD 2011 SC 805 in which, the apex Court held that as the application of the petitioners had not been rejected for a period of more than 100 days, petitioner had acquired a right that they should be dealt with in accordance with law as envisaged under Article 4 of the Constitution. In the above case PEMRA was directed to issue the license. It was further contended that the decision taken in Authority’s 65th meeting cannot take retrospective effect. In any event, the license of the petitioner, was in fact approved by PEMRA in its 62nd meeting, however, no formal license was issued. The learned counsel also referred to Item No. 5 of the Minutes of the 62nd Meeting, which shows that Respondent No. 2 indeed decided to issue Satellite TV licenses to eight companies, details of which are mentioned in Annexure B appended to the minutes of meeting. He further referred to Annexure “A” of the statement dated 08.05.2018 filed by the Respondents Nos. 2 to 5 wherein a list of Satellite TV channels with their dates of award of license are mentioned. The learned counsel invited our attention at Serial Nos. 3 and 5 to demonstrate that two companies i.e. Media Roots (Pvt) Ltd. and Devine Intervention (Pvt) Ltd. have been awarded licenses on 12.06.2013 and 23.05.2013 respectively. The column of “Remarks”, reflects above two licenses were issued after the alleged change of policy. It was further averred that in the similar circumstances, the Respondent No. 2 has issued STV license to GEO Super.

3. The learned counsel for the Respondents Nos. 2 to 4 argued that the petitions have been filed without board resolution. An alternate efficacious remedy has been provided under Section 30-A of the PEMRA Ordinance, 2002 by way of filing an appeal before the High Court if the petitioners are aggrieved from any decision of the Authority. The decision of Authority to grant all the satellite TV licenses through biding was widely publicized in the media as well as uploaded on PEMRA website. The petitioners’ alleged applications for grant of licenses were decided by virtue of the said Authority decision and in this regard the petitioners were again informed vide letter dated 18.05.2011 as well as the same was reiterated through letter dated 24.05.2011. He further argued that the petitioners’ group is a defaulter of PEMRA. He admitted two licenses granted to “M/s Indus TV Network” and “Indus Music”. He further argued that before receiving security clearance in the case of petitioners, PEMRA had already stopped issuance of new licenses and decided to grant all the licenses through bidding in accordance with Section 19 of the PEMRA Ordinance, 2002. Mere filing an application does not in any manner confer any vested right on the petitioner or any other person and it is for the respondent to satisfy itself regarding compliance with the relevant law, rules and regulations before issuance of the licenses. He further argued that Section 22 of the PEMRA Ordinance, 2002 is declaratory in nature and cannot be made basis for claiming any vested right.

4. Heard the arguments. The purpose of promulgation of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 was to improve the standards of information, education and entertainment, enlarge the choice available to the people of Pakistan in the media for news, current affairs, religious knowledge, art, culture, science, technology, economic development, social sector concerns, music, sports, drama and other subjects of public and national interest and to facilitate the devolution of responsibility and power to the grass-roots by improving the access of the people to mass media at the local and community level and ensure accountability, transparency and good governance by optimizing the free flow of information. Under Section 3 the Federal Government has established a public authority known as Pakistan Electronic Media Regulatory Authority for carrying out the purposes of this Ordinance. Under Section 4, the functions of the authority have been depicted to figure out and translate the responsibilities of Authority to regulate the establishment and operation of all broadcast and CTV stations in Pakistan for the purpose of international, national, provincial, district, local or special target audiences. Under Section 19 the Authority has exclusive right to issue licenses for the establishment and operation of all broadcast media and distribution services, provided that this exclusive right shall be used by the Authority in conformity with the principles of fairness and equally applied to all potential applicants for licenses whose eligibility shall be based on prescribed criteria notified in advance and this shall be done through an open and transparent bidding process. Whereas under Section 22 a clear condition is provided that the authority shall take decision on the application for a license within one hundred days from the receipt of the application. For the ease of reference, Section 22 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 is reproduced as under:

Section.22--Duration for consideration of the application for a license:

The authority shall take decision on the application for a license within one hundred days from the receipt of the application.

1. In exercise of powers conferred under subsection (1) of Section 39 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002, the Pakistan Electronic Media Regulatory Authority with the approval of Federal Government framed the Pakistan Electronic Media Regulatory Authority (PEMRA) Rules, 2002. In Rule 11 the Authority was responsible to process each application as provided under Section 19 of the Ordinance and in sub-rule (5) it is provided that the Authority shall take decision on the application for a license within one hundred days from receipt of the application. It is an admitted position that the applications were filed by the petitioners in 2004 but their applications were not decided within one hundred days. PEMRA, 2002 Rules were repealed by PEMRA Rules, 2009 but in Rule 19 also, it is provided that application shall be decided within hundred days subject to the clearance from Ministry of Interior and Frequency Allocation Board (FAB). The learned counsel for the PEMRA argued that this condition is directory and not mandatory for the reason that no penal consequences are provided under the law. In the case of Independent Music Group SMC (Pvt.) Ltd v. Federation of Pakistan (PLD 2011 SC 805), the apex has held has under:

2. After hearing both the sides and having gone through the contents of the judgment of the High Court, under challenge, we are of the opinion that the learned High Court, keeping in view the fact that the petitioners have already suffered for a period of about four years, instead of remanding the case, may have issued a writ in the nature of mandamus. Be that as it may, if it has not done so, the PEMRA is under obligation, both legally and morally, to issue licence to the petitioners because the reason which prevailed upon it for refusing to issue licence to the petitioners i.e. “security clearance”, has not been accepted by the learned High Court, therefore, the petitioners who on the basis of their application waited for a period of more than 100 days, during which his application has not been rejected, has acquired a right that they should be dealt with in accordance with law as is envisaged under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. Any excuse now being made on behalf of the PEMRA is not acceptable for the reason that earlier when the rejection order was passed on 8th June, 2007, which has been reproduced hereinabove, no such demand was put forward calling upon the petitioners to fulfill the same or to remove the objection if any. If such practice is allowed to prevail then there would be no end to the litigation and if a request has been rejected/refused beyond the statutory period and the order is not sustained before the High Court then, with a view to deprive a person who is entitled to the licence and his application has been kept pending for four years, without being processed, there shall be no end to his matters and he is to enter into litigation time and again for the reasons which shall be put before him from time to time.

3. We have noted regretfully that the authorities, who are required to discharge their functions under statutory provisions, kept the matters lingering on without any legal or constitutional justification; as it happened in the instant case because it was for the PEMRA either to have rejected the application within 100 days under the law or it would have accepted the same; but now when the Court has intervened and passed the impugned order, no other excuse shall be acceptable for the purpose of causing delay in disposal of application of the petitioners.

Thus for the foregoing reasons, the petition is converted into appeal and allowed. The PEMRA is directed to issue immediately licence to the petitioners, in terms of their application, which they have submitted on 2-7-2007 and submit compliance report of this order to the Registrar of this Court within a period of three days, which shall be placed before us in Chambers for perusal. Parties are left to bear their own costs.

7. No doubt under the Ordinance, 2002, no penal consequences are provided in case application is not decided by PEMRA within one hundred days but at the same time the purpose of this cutoff date and the excuses offered to give good reason for the delay necessitate some attentiveness and concentration to thresh out the actual purpose of this deadline/cutoff date. The purpose of providing no penal consequences does not mean simpliciter to keep the application pending at the rest and leisure of the Authority beyond one hundred days but this is a serious business for which an onerous duty has been imposed on the authority under the law to discharge their responsibilities and duties in accordance with law and in fair and transparent manners. If the delay beyond one hundred days in deciding the application is taken for granted then the whole purpose and scheme of law which basically triggers and activates from an act of filing application to the Authority is frustrated. We do not ruminate it appropriate that since no consequences are provided, therefore, PEMRA may keep the application pending for an unlimited period of time. The establishment of any broadcast station of satellite T.V. is not a job of one day but sizable infrastructure and groundwork required to be put together with various other formalities to launch T.V. channel. It is not a basic theme and idea of law that applications should be filed and authority may delay the applications to respond for number of years. In fact in doing so the Authority is not discharging its functions in accordance with law and also frustrating and defacing the very purpose of fairness and transparency in their affairs. In the similar controversy, the apex Court in the case of GEO Super (supra) observed that the petitioner waited for a period of more than 100 days, during which the application was rejected hence they acquired a right that they should be dealt with in accordance with law as envisaged under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. The apex Court further held that any excuse now being made on behalf of PEMRA is not acceptable for the reason that earlier when the rejection order was passed, no such demand was put forward calling upon the petitioners to fulfill the same or to remove the objection if any. If such practice is allowed to prevail then there would be no end to the litigation and if a request has been rejected/refused beyond the statutory period. The apex Court further observed that authorities, who are required to discharge their functions under statutory provisions, kept the matters lingering on without any legal or constitutional justification; as it happened in the instant case because it was for the PEMRA either to have rejected the application within 100 days under the law or it would have accepted the same.

8. In the case in hand, the matter is not confined only to the grievances of the petitioners that their applications have not been decided within one hundred days but the matter has gone one step ahead. The minutes of 62nd meeting of Pakistan Electronic Media Regulatory Authority dated 25.05.2010 demonstrated that the meeting of the authority was convened on 12.05.2010. In Item No. 5, the authority approved issuance of Satellite T.V. license to eight companies, the names of companies with Satellite T.V. Channels are mentioned in Annexure “B” appended to the minutes subject to completion of all legal requirements and subject to payment of Pakistan Electronic Media Regulatory Authority dues/license fee. In the Annexure “B” appended to the Minutes, at Sr. 7 the name of Indus Entertainment (Pvt.) Ltd. (petitioner in C.P. No. D-63 of 2012) is mentioned with proposed channel “Indus News” whereas at Sr. No. 8 the name of M/s. Gaaza Broadcast System (Pvt.) Ltd. (petitioner in C.P. No. D-62 of 2012) is mentioned with proposed channel “G.”. The learned counsel for the Respondents Nos. 2 to 5 though not denied the minutes of meeting with Annexure “B” but he argued that due to delay in the security clearance, licenses could not be issued to the petitioners. Here we would like to observe that in the security clearance the petitioners have no role to play as this is purely internal matter of the PEMRA to send credential and antecedents of the applicant to the concerned Agency or Agencies for Security Clearance and keep the follow up for an early response and report.

9. The learned counsel for the Respondent No. 2 has also filed a statement on 25.04.2018 and placed certain documents on record. Annexure A/1 is letter dated 02.12.2010 issued by Section Officer, Ministry of Interior with the subject “security vetting; M/s. Gaaza Broadcast System (Pvt.) Ltd”, the Section Officer has given a reference of PEMRA letter dated 11.05.2010 and communicated to the PEMRA that Ministry of Interior has no objection to the subject proposal from security point of view. Despite approval of the Authority for the grant of license to the petitioners in their 62nd meeting of the Authority convened on 13.05.2010, the licenses were not issued to the petitioners and petitioners from time to time sent reminders to PEMRA. However, on 24.05.2011, the PEMRA communicated both the petitioners through separate letters of the same date that Authority has stopped issuance of any more Satellite T.V. Channel license and decided that the award of further Satellite T.V. Channel license will be made through open bidding and both the petitioners were advised to apply as and when same is advertised in the newspapers. The petitioners in same letters were also requested to clear their outstanding dues on account of up-linking fee. The record reflects that on 25.04.2018 petitioners’ counsel made a request to the learned Division Bench of this Court that the respondents may be directed to submit details relating to issuance of similar license to other channels during the relevant period. In compliance of the order, learned counsel for the Respondent No. 2 submitted the details of licenses granted to the other T.V. channels pursuant to the decision taken in the 62nd meeting, whereby, the Authority decided to issue Satellite T.V. license to 8 companies mentioned in Annexure “B”. In the statement the names of said 8 companies have been reproduced as under:-

| | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | | S.# | Name of Companies | Channel Category | Name of Channel | Date of Application | Date of security clearance from MoI | Date of award of license | Remarks | | i. | M/s Dhoom Television Network (Pvt.) Limited | News and Current Affairs | Dhoom TV | 6-8-2008 | 30-6-2007 | 20-9-2010 | Converted from LRP to Satellite TV License | | ii. | M/s. Dolphin Media (Pvt.) Limited | Regional Language | Sindh TV | 20-8-2008 | -- | 17-9-2010 | Converted from LRP to Satellite TV License | | iii. | M/s Media Roots (Pvt) Limited | Enterain-ment | Pak Plus | 26-1-2009 | 14-11-2009 | 12.06.2013 | The Authority in its 62nd meeting held on 13-5-10, was initially approved the grant of STV license subject to the completion of illegal requirement. The company was granted STV license in 2013 in pursuance to the decision of the Authority in its 81st Meeting held on 15-2-2013 since it was earlier approved by the Authority in its 62nd meeting. | | iv. | M/s. Pamir Media (Pvt.) Limited | Regional Language | Watan News | -- | -- | -- | There is no any satellite TV license issued to company. | | v. | M/s Divine Intervention (Pvt.) Ltd. | News and current Affairs | Mashriq | 2-7-2009 | 15-3-2010 | 23-5-2013 | The authority in its 62nd meeting held on 13-5-2010, was initially approved the grant of STV license subject to the completion of illegal requirement. The Authority in its 82nd Meeting held on 14-3-13 approved the award of satellite TV license subsequent to the completion of all legal and codal formalities since it was earlier approved by the Authority in its 62nd meeting. | | vi. | M/s APNA TV Channel (Pvt) Ltd. | Entertain-ment/Food | Tarka | 6-8-2008 | 30-6-2007 | 6-10-2010 | The company was already operating three (3) STV licenses | | vii. | M/s Indus Entertainment (Pvt.) Ltd. | News and Current Affairs | Indus News | -- | -- | -- | There is no any satellite TV license issued to company. | | viii. | M/s Gaaza Broadcast Sytem (Pvt.) Ltd. | Entertai-ment/Music | Channel G | -- | -- | -- | There is no any satellite TV license issued to company |

1. It appears from the aforesaid table reproduced from the statement filed by the learned counsel for the Respondent No. 2 that the company mentioned at Sr. No. 1 was awarded license on 20.09.2010 which was converted from LRB to STV license. While company at Sr. No. 2 was granted license on 17.09.2010 and it was also converted from LRP to STV license. Whereas, company mentioned at Sr. No. 3 was granted license on 12.06.2013 which was also approved in the 62nd meeting, whereas the license of company mentioned at Sr. No. 4 was also approved on 13.05.2010 in 62nd meeting. The company mentioned at Sr. No. 6 was also granted license on 06.10.2010 but at Sr. Nos. 7 and 8 the names of petitioners are mentioned and in the remarks, PEMRA mentioned that there is no Satellite T.V. license issued to the company. This statement filed by the learned counsel for the Respondent No. 2 obviously depicts that except the petitioners, other companies mentioned in Annexure “B” of the minutes were granted license pursuant to the decision taken by the Authority in its 62nd meeting held on 13.05.2010. In the letter dated 24.05.2011, PEMRA informed the petitioners that they have stopped the issuance of any more Satellite T.V. license and decided to award of further/future Satellite T.V. licenses through open bidding but the statement filed by the learned counsel for the Respondent No. 2 shows that even after this letter the Media Roots (Pvt.) Ltd. and Devine Intervention (Pvt.) Ltd. mentioned in the statement at Sr. Nos. 3 and 4 were granted license pursuant to the decision taken in the 62nd meeting held on 13.05.2010. No justification has been shown by the respondents that on the one hand they communicated to the petitioners in 2011 that no further licenses shall be issued without bidding process but in 2013 they granted licenses to other companies which were placed in the similar and identical situation of the petitioners. No rationale was placed to defend this discriminatory treatment with the petitioners particularly in the circumstances when the petitioners’ names were also mentioned in the same Annexure “B” and their licenses were also approved by the Authority in the same meeting but without any justification, it remained pending for an unlimited period of time.

2. The learned counsel for the Respondent No. 2 also placed on record a copy of PEMRA (Eligibility Criteria and Bidding Procedure For Satellite T.V. Licensing) Regulations, 2014 notified in exercise of powers conferred under Sections 4, 18 and 19 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 read with Pakistan Electronic Media Regulatory Authority Rules, 2009. These Regulations were framed in 2014 despite that the learned counsel for the PEMRA argued that in view of the Regulations framed in 2014, the licenses will be granted through bidding process whereas the applications for licenses were filed in 2004. This bidding process was otherwise provided much earlier under Section 19 of Ordinance, 2002 regardless of that PEMRA was granting licenses and have granted numerous licenses on the basis of approval given by the Authority in its meeting and this was also done with the applications of eight companies mentioned in Annexure “B” of the minutes of 62nd meeting held in 2010 including the applications of petitioners. Now at this belated stage when pursuant to the same meeting others were granted license, the petitioners cannot be victimized of such discriminatory treatment of the PEMRA.

3. So far as the plea that the petitioners are defaulters and failed to pay up-linking charges, this cannot be made a ground or justification for delaying or rejecting the applications and if such ground had so serious ramifications on the eligibility criteria then there should be no occasion to approve the grant of licenses by PEMRA to the petitioners in 62nd meeting. What’s more, if the petitioners are defaulters, the PEMRA is not helpless but it has ample powers and authority to recover their legitimate dues. So far as the security clearance is concerned, it is evident from the letter dated 02.12.2010 that the Ministry of Interior had given their no objection from security point of view to M/s. Gaaza Broadcast System (Pvt.) Ltd. so this was also no reason to believe that on account of some delay in security clearance which was otherwise accorded in 2010 when even no Regulations for bidding process were in field. So in our view, there is no astute or reasonable excuse to deprive the petitioners from the award of licenses approved by the authority in 62nd meeting. On the contrary, PEMRA ought to ensure accountability, transparency and good governance in their affairs.

13. Consistent with Article 25 of the Constitution, Equal treatment means equal treatment in the midst of persons who are evenly positioned or fit to the same class of people. Perception and onset of equality is negation of arbitrariness. Every power has its extent and legal limits. Exercise of such power should be based on evenhandedness and level-headedness. Persons in similar circumstances should have similar treatment unless segregation is based on rational cataloguing which should not be whimsical. Comprehensible differentia distinguishes persons or things that are grouped together from those who have been left out, so this ought to be judicious linkage to the purpose desired to be achieved by such classification. The concepts equal before law and equal protection before law appear to be synonyms terms, one discourages and negates all special privileges to any citizen or class and subject them of ordinary law of land, whereas the other declares that all citizens must have equal protection have placed in the same circumstances and situation. Every statutory body or public functionary is supposed to function in good faith, honestly and within precincts of their powers so that person concerned should be treated in accordance with law as guaranteed by Article 4 of the Constitution.

14. As a result of above discussion, these petitions are disposed of with the directions that pursuant to the decision taken in the 62nd meeting, the Pakistan Electronic Media Regulatory Authority shall issue licenses to the petitioners within one month for the Satellite TV Channels applied for on the payment of applicable license fee.

(Y.A.) Petition Disposed of

PLJ 2020 Karachi 50

Present:Salahuddin Panhwar, J.

Mst. AFSHEEN and others--Petitioner

versus

GOVERNMENT OF SINDH through Home Secretary Sindh and others--Respondents

C. P. Nos. S-1957 & 2662 of 2018, 87, 105, 258, 277, 331 & 357 of 2019, decided on 7.3.2019.

Constitution of Pakistan, 1973--

----Art. 199--Domestic Violence (Prevention and Protection) Act, (XX of 2013), Ss. 3, 7, 17(2) & 27--Constitutional petition--Eviction from residential places--Domestic violence--Efficacious remedy--Establishment of safe houses--Allocation of funds--Fundamental rights--Scope of act--Formulation of committee--Direction to--It is admitted that for last years of promulgation of Domestic Violence (Prevention and Protection) Act, 2013, same is not implemented due to various hurdles--vitality of Act was always demanding a prompt action and notification of ‘Commission’ as well protection officers which, however, remained hanging till hammered by this Court--This Court, being ultimate guardian of law and that of fundamental rights, shall always keep hammering as and when notices any thing alike however, government was/is always believed to be more vigilant as it (government) is, otherwise, directly answerable to its people, therefore, I believe that in future no such negligence shall be shown nor ‘government’ shall ever come with such an excuse in future--It shall ensure implementation of Domestic Violence (Prevention and Protection) Act, 2013 in its letter and spirit--Since (scope of Act is much wider and prima facie is aimed to ensure immediate rescue and assistance to an aggrieved (as defined in Act) therefore, in every single district, committees are required to be formulated hence a mechanism of ambulance/rescue service shall be provided with toll-free number accessible to everyone--It is pertinent to mention that a psychologist including Protection Officers and other posts in each districts shall be filled within three months, same is demand of Act--Since such Act provides shelter homes in every district, fate of safe houses shall also be decided by above referred departments whether same shall be governed under that referred Act? or government may choose to establish parallel shelter homes--Campaign shall be launched by all departments by taking steps on emergency basis in every district by using social as well electronic and print Media by including it in public interest Seminars--As well District Judges shall be taken onboard--Campaign must not only make people aware about objective of Act but should also make it known to people that doors of Courts of Magistrate shall always be open to an aggrieved or an informant for immediate rescue/help, as provided by Section 7 of Act and even no formality to approach concerned police station is needed--Besides, learned MIT was directed to circulate Domestic Violence (Prevention and Protection) Act, 2013 to all Magistrates, accordingly report shall be submitted quarterly with regard to cases of domestic violence and action taken thereon--Office shall not entertain any petition regarding domestic violence, as such Act provides alternative and efficacious remedy by approaching concerned Magistrate--While feeling very pertinent role of police regarding harassment issue, all D.I.Gs of Province shall start awareness campaign and refer case of harassment in above categories to learned Magistrates for disposal in accordance with law, till finalization of Committees and Rescue force in each district--Petition disposed of.

[Pp. 62, 63, 64 & 65 ] A, B, C, D, E, F, G & H

Mr. Qadir Hussain Khan, Advocate for Petitioners.

M/s. Sajjad Ahmed Chandio and K.B. Lutuf Ali Leghari, Advocates for Respondent No. 7 (in CP No. S-1957/2018).

Mr. Ghulam Muhammad, Advocate for Respondent (in CP No. S-105/2019).

Mr. Mushtaq A. Memon, Advocate, learned amicus curiae.

Mr. Salman Talibuddin, Advocate General Sindh and Ch. Khalid Nawaz, Assistant Advocate General and Ms. Nigar Afaq, State counsel.

Mr. Faheem Hussain Panhwar, Deputy P.G.

Ms. Anjum Iqbal, Addl. Secretary Women Development Department, Ms. Nuzhat Shirin, Chairperson, Sindh Commission on the status of Women, Ms. Fauzia Masood, Deputy Director, Sindh Child Protection Authority, Karachi, Muhammad Khaliq Qureshi, Deputy Director/Focal Person, Sindh Welfare Department, DSP Raza Mian I.G.P. (Legal).

PI Abdul Latif, SHO PS Clifton, SIP Muhammad Anwar, PS Artillery Maidan, Karachi, SIP Sujawal Iqbal, PS Sher Shah and PI Raja Afzal.

Dates of hearing: 22.1 & 7.2.2019.

Order

Captioned petitions pertain to Domestic Violence (Prevention and Protection) Act, 2013; petitioners (mothers, sisters, wives) have approached this Court against sons, brothers, husbands respectively, with regard to harassment caused by them on different grounds and apprehensions of eviction from their residential places.

1. At the outset, it is material to add here that ‘domestic violence’, targeting the weakest of society i.e women and infirm old (parents), has been increasing abnormally. The aggrieved, normally, resorts to constitutional jurisdiction when there is no efficacious remedy available at door-step. The heat of the issue was felt while hearing the CP No. S-1957/2018. At this juncture it would be conducive to refer order dated 15.10.2018 passed in CP No. S-1957/2018 asunder:

“2. At the outset learned counsel for Respondent No. 7 contends that petitioner filed a suit at Khairpur wherein she claimed that she has left house with one minor aged about 6 months and thereafter contends that Respondent No. 7 has divorced her and minors are studying in Karachi and Respondent No. 7 has questioned the character of his wife hence he has expelled her from her house.

1. After hearing the petitioner and Respondent No. 7 it is not disputed that Respondent No. 7 is serving as reporter in the Provincial Assembly since 2012/2013 he had hired a flat and was living with petitioner; their marriage was solemnized in 2007 and from this wedlock they have five kids and alleged detenues are school going; petitioner has been expelled from house in January this year.

2. Respondent No. 7 contends that petitioner has failed to perform her duties as mother and even has not attended any parents’ meeting at school. In response thereto petitioner contends that for ten years she has given birth to five kids with seizure and was always caring to them; at the time of marriage she was studying in intermediate and she was not in a position to continue her education but was suddenly expelled to step on roads after such long union thereby had no immediate shelter.

3. The typical situation gives rise to following propositions that:

“Whether an act of driving out a housewife by husband during continuity of marital ties is justified? and

“Whether there is any legislation so as to accommodate such driven out house-wife?

None can deny the fact that Religion of Islam places much insist on ‘dignity/parda’ of the women and despite giving ‘woman’ equal rights yet does not consider her “identical”with ‘man’. The biological makeup of the man and woman, difference of physiology and psychology, the creator (Allah Almighty) himself has defined duties and obligation (s) of both. Such defined difference places the ‘man’, in all normal situations, to ensure protection of dignity and life of the ‘women’, which too, without crossing the ordained limits. Further, the typicality of our culture and custom never prepares a ‘women’ from her very beginning (childhood) for earning livelihood. Despite, changing/developing status of a ‘woman’ from ‘daughter to wife’ ‘and wife to mother’, she has been assured of her ‘maintenance’ by the ‘men’ regardless of his status as ‘father; brother; husband or son (capable of earning). This has been the reason that very touch-stone of measuring ‘respect’ of a ‘man’ has not been attached to his poverty or wealth but as stated by the Holy Prophet (صلی اللہ علیہ وسلم) that:

“Among you the most respectable is the one who respects women and the most disrespect is the one who disrespects the women”

The Holy Prophet also said “It is the generous (in character) who is good to women and it is the wicked who insults them”.

One must remember that a woman when agrees to part with her status as daughter so as to step into status of wife she relieves her father/brother from her maintenance/care which ‘duty’ is presumed to have been taken by the ‘man’ (husband) once he accepts her in her Nikah/marriage. Such agreement not only requires the husband to maintain her but to give due respect to wife. The respect shall always include dignity of woman and if she is compelled to step out on ‘road’ certainly certain privileges, which she in all circumstances enjoys, shall stand prejudiced. It is also divinely instructed that:

“And live with them honourably” (al-Nisaa 4:19)

It may well be added that driving a woman out of the house would certainly expose her to ‘Na-mehrams’ who otherwise are not permitted to come in contact with a ‘woman’.

If a man does not legally part with his status as ‘husband’ he legally is believed to continue discharging all his obligations which he owned at time of Nikah/marriage. I would add that term ‘maintenance’ would never find its true meaning by throwing some money at her or expecting her parents to take care of her but it shall always include all which are necessary to complete the term ‘life’. However, this shall never give any undue advantage to woman because such obligation is well balanced:

“Let the rich man spend according to his means; and the man whose resources are restricted, let him spend according to what Allah has given him” (al-Talaaq 65:7)

The accommodation thus is necessary part of the maintenance hence if a man for any reason wants a temporary separation (as a warning even to his wife) yet he is expected not to deprive her (wife) any right which does include accommodation. It may be added that divine advise for a ‘man’ (husband) even while divorcing his wife is:

“Lodge them (divorced women) where you dwell, according to your means” (al-Talaaq 65:6)

Therefore, the proposition-1 cannot have any other answer but a ‘BIG NO’.

However, it is an irony that we experience such incidents on regular basis which the ‘man’ dare to do while wrongly interpreting certain ‘privileges’, given to ‘man’ only. The picture, so surfaced in instant case, is one of such abnormal increased incidents.

Keeping above in view, I would add that since the ‘state’ has been given the ultimate status of ‘guardian’ therefore, if there is any such infringements then it is the state which should be available thereby assuring temporary arrangement couple with a complete mechanism. However, presently I could not lay my hands on any legislation which deals with situation arising out of proposition-1. The position, being so, requires a little more from the ‘State’ to do legislation which (legislation) is believed to protect a right or to prevent an infringement thereof.

1. Now, reverting to merits of the case, since admittedly Makhdoom Bilal, Makhdoom Siraj and Tehreem Fatima are minors which (minority/tender age) always tilt in favour of lap of mother. Accordingly, without prejudice to competence of guardians Court to determine welfare of minors, the custody of minors namely Makhdoom Bilal, Makhdoom Siraj and Tehreem Fatima is handed over to the petitioner (mother). At this juncture it is surfaced that Makhdoom Mehraj aged about 3 years, after being snatched from the petitioner was handed over to grandmother at the village at Sehwan Sharif. Judicial propriety demands that petitioner shall continue her stay in the same house where she was residing with her husband however Respondent No. 7 shall make alternative arrangement for accommodation and maintenance of minors till further decision of the welfare of the minors and till then Respondent No. 7 is required to meet all expenses and maintenance of minors under the supervision of the petitioner (mother). At this juncture Respondent No. 7 contends that time may be given for alternate arrangement for accommodation of minors and maintenance, till then custody may be handed over to the petitioner, such proposition is accepted by petitioner, further Respondent No. 7 contends that he will bear all educational expenses of kids and treatment is free on his health card however he would provide Rs. 10,000/- per month. It is further settled that one minor is with cousin of respondent and accordingly he shall be produced on next date.

2. In view of Paragraph No. 5, copy shall be provided to Advocate General Sindh with regard to legislation on this issue if any, as well as issue notice to Attorney General of Pakistan. The Chief Secretary Sindh shall submit report with regard to Legislation for the protection of housewives as well temporary gap-arrangement of immediate shelter/safety of such women. Needless to add that if there is no legislation, the quarter concerned is hoped to process for proper legislation in this regard by adopting proper procedure, so required for such purpose.

At this juncture it would be conducive to appoint Mr. Mushtaq A. Memon and Mr. Khalid Javed Khan, advocates, as amicus curiae to assist this Court. Office shall provide copy of this order with petition and annexures within three days.”

1. The answer to proposition-1 was responded as ‘BIG NO’ while the proposition-2 was left open while adding as “presently I could not lay my hands on any legislation which deals with situation arising out of proposition-1” hence amicus curie was appointed. Needless to add that at such occasions the representation of the ‘Government’ was there. Here, I will prefer to take a pause and would first reproduce order dated 26.02.2019 passed in CP No. S-2662/2018 and others connected petitions:

“Comments are filed as well report is also filed for Social Welfare Department, which are taken on record. At the very outset, learned AAG submits that he has spoken with all relevant Officers on this issue; according to them, matter pertains to Women Development Department. However, there are many departments working on this issue and joint mechanism is yet to be framed. Accordingly, Chairman Status of Women Commission, Secretary Social Welfare, Secretary Women Development Department and D.G. Child Protection Authority shall submit compliance report with regard to Women, Children and vulnerable persons in view of Domestic Violence Act, 2013. They shall depute Additional Secretaries/focal persons for assistance and implementation of the order dated 14.02.2019 passed in CP. Nos. D-2662/2018, 258 & 277 of 2019 and orders passed on different occasions.

To come up on 07.03.2019 at 11:00 a.m. Issue notice to the private respondents in the aforesaid petitions. In the meanwhile official respondents shall provide complete protection to the petitioners in the aforesaid petitions. In case of failure, they would be exposed to contempt proceedings. Learned MIT shall submit report with regard to circulation of Domestic Violence Act, 2013 to all the concerned Magistrate of the Districts for its implementation.”

1. Resuming, I am forced to add here that the Government legally cannot take an exception merely by making ‘legislation’ unless the same are divulged. The irony which I am attempting to unfold requires referral to order dated 14.02.2019 passed in CP Nos. S-277 and 258 of 2019 as despite existence of a comprehensive legislation the proposition-2 could not found an answer in time. The order reads as:

“SALAHUDDIN PANHWAR, J: Petitioner in CP No. S-277/2019 has stated that her daughter Mst. Iqra was married with Respondent No. 5 on 23.08.2018; three months back Mst. Iqra was compelled to leave the house of Respondent No. 5 when she was carrying pregnancy of fifth month hence took shelter of her mother (petitioner), Mst. Iqra was beaten by Respondent No. 5 in collusion with other respondents; petitioner and her daughter approached concerned police station and from there they were referred to Abbasi Shaheed Hospital and medical reports were issued. Further, son of petitioner namely Adil was taken by police of PS Surjani Town on 06.02.2019 and detained in illegal confinement for one day. Private respondents are still harassing the petitioner and her daughter, petitioner approached concerned authorities for protection and security but to no avail hence this petition for direction to the respondents to provide protection and security to the petitioner and her family members in accordance with law.

1. Petitioner in CP No. 2662/2018 stated that she is a widow, her husband has expired leaving behind five children; Respondents No. 4 and 5 are real brothers of petitioner who are harassing the petitioner and her children; she approached concerned authorities for protection and security but all in vein, hence this petition for direction to the official respondents to provide protection and security to the petitioner in accordance with law.

2. Petitioner in CP No. S-258/2019 is a widow aged about 65 years, she stated that she permitted Respondent No. 5 who is her son, to temporarily live in her house but he alongwith Respondent No. 4 has illegally occupied the house and removed the petitioner from the house and also threatened her for dire consequences; since private respondents are harassing the petitioner, she approached concerned authorities for protection and security but to no avail hence this petition for direction to the official respondents to provide protection and security to the petitioner in accordance with law.

3. Before going into merits of the case, I feel it quite necessary to say that no law allows one to become victim of cruelty merely for reason of his/her being a women, child, old aged and infirm rather directs all relations such as ‘husband’; father of a child’ and son of an old aged and infirm parent to show love at such time of their life by ensuring all privileges of life to them. This has always been the divine direction in all religion and expectation from every civilized culture/society, however, regret to admit that we had no such specific law till enactment of Domestic Violence (Prevention & Protection) Act, 2013. I shall have to admit that the preamble of the Domestic Violence (Prevention and Protection) Act, 2013 is sufficient to describe the importance and vitality thereof which reads as:-

(underlining is for emphasis)

WHEREAS it is expedient to institutionalize measures which prevent and protect women, children and any vulnerable person from domestic violence and for matters connected therewith or incidental thereto;

1. Prima facie, it was enacted to provide protection to the weakest class of society i.e ‘women & children’ as, normally, we are carrying a presumption of living a ‘male dominant society’ where aggrieved even does not dare to tell about ‘domestic violence’ because of threats of being abandoned or dispossessed/removed from household. This appears to be the sole reason that while enacting the legislature deliberately inserted Section 3 which reads as:-

“Government shall ensure that,--

(a) this Act and the contents thereof receive wide publicity through electronic and print media in Urdu and local languages;

(b) the Government officers, the police and the members of the judicial service are given periodic sensitization and awareness training on the issues addressed by this Act; and

(c) effective protocols are formulated by the concerned Ministries and Departments dealing with health, education, employment, law and social welfare to address the issue of domestic violence and that the same are periodically revised.

The above provision is an exception which, normally, is not included in legislation. This brought the Government (Sindh Government) under a mandatory obligation to divulge the scope and objective of the Act so that aggrieved (women and children) may, no more, be victims of domestic violence rather could feel protection and those guilty of such like acts may be prevented from repeating such offences. Despite being under such bounden obligation, the Government of Sindh, I am sorry to say, failed thereby never allowed the lawfully enacted act to take birth even rather allowed it to remain in dark at cost of otherwise guaranteed fundamental rights of aggrieved, including women and children.

(underlining is for emphasis)

1. The perusal of the Act shows that term ‘domestic violence’ has no limited definition but has been extended thereby making it applicability to cover all sort of situation (s) including ‘stalking’.

2. The legislature, I would appreciate, did kept in view the typical thoughts of our society therefore not only insisted upon publicity of the scope and object of the Act but also asked for immediate constitution of ‘protection committee’ wherein those have been included so as to provide good counseling as well required assistance which an aggrieved person may require in such a situation. However, none has placed any such notification whereby such committee is to be notified. This again proves negligence on part of the Government though an Act, once passed, brings the Government under mandatory obligation to give weight thereto. I would add that since, otherwise, guaranteed rights of women, children etc to enjoy feel of protection of law, once earned blessing of the law, cannot be left unattended because of negligent attitude of the government. Such negligence has resulted in making the present petitioner to approach this Court for a relief which, otherwise, was available to him at root-level. Therefore, I find it in all fairness to order the Sindh Government to:

i) immediately compliance of Section 3 of the Act in its letter and spirit;

1. However, since the law itself has vested jurisdiction in the Courts therefore, which seems to be not being exercised perhaps because of reason of non-compliance of Section 3 supra, therefore, learned M.I.T of this Court shall ensure that such Act is circulated to all Magistrates who shall ensure compliance when any person falling within the category of that Act approaches them; they shall be provided protection. Learned Magistrates would be competent to pass further orders with regard to monetary aid and with regard to restraining eviction, Besides, IGP Sindh is hereby directed to ensure that complaint of harassment in above categories shall be referred to concerned Magistrate.

2. I would further add that normally the victims of ‘domestic violence’ do not find any immediate reliefs but remain dependant upon others (not morally and legally obliged to maintain) or in shelter house(s) therefore, legislatures did address such situation. One of the aims of the Act is also to ensure immediate interim relief to an aggrieved from being dispossessed/removed from house hold but also:

a) compensation to the aggrieved person for suffering as a consequence of economic abuse to be determined by the Court;

b) loss of earning;

c) medical expense;

d) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

e) the maintenance for the aggrieved person as well her children, if any, including an order under or in addition to an order of maintenance under family laws.

couple with direction to respondent to:

pay monetary relief to the person aggrieved within the period specified, as directed in accordance with law.

Therefore, the Magisterial Court (s), the law hopes, shall feel courageous in dealing with such situation (s) by passing interim order (s) but on being satisfied of prima facie substance.

1. The Bars Association (s) are houses of those, believed to be well versed, hence it is also hoped that the Bar Association (s) shall also provide necessary knowledge about the scope and object of the Act by arranging the Seminar(s) etc. inviting Judges for participation too.

2. Reverting to merits of the case, since I am conscious that legally the proper remedy for issue of domestic violence lies with Magisterial Court hence it would be appropriate to leave it open to be addressed, however, meanwhile Learned Magistrate having jurisdiction of PS Surjani Town shall ensure that no harassment is caused to the petitioner and her daughter.

3. The Chief Secretary Sindh shall submit report with regard to Sections 3, 4, 17, 18 and 21 of the Domestic Violence (Prevention and Protection) Act, 2013 and ensure that Commission and Committees are notified within a month; wide publicity shall be given regarding this Act. As well Advocate General Sindh shall submit whether Rules under the Act have been framed or not.

4. Issue notice to respondents for 26.02.2019 at 9.30 a.m; copy this of order be sent to Prosecutor General, Advocate General Sindh, Chief Secretary, I.G.P. Sindh, Vice Chairman, Sindh Bar Council; the focal person of Social Welfare Department, Government of Sindh, shall also be present, with compliance report on next date of hearing.”

The above back-ground, I believe, would have made clear the reasoning for referral of earlier orders and brining all the above petitions in one line.

1. Heard learned counsel for petitioner as well A.G. Sindh, Chairperson of Sindh Commission on Status of Women, representatives of Social Welfare Department, Women Development Department and Child Protection Authority.

2. Learned A.G. Sindh contends that earlier seventeen 17 safe houses were established, which figure has risen upto 29 (safe houses) in the Province at present; in cabinet meeting Rupees five million for each safe house has been allocated and accordingly Rupees 145 million is allocated for all 29 safe houses, same shall be at the disposal of the Deputy Commissioners. He further contends that every district committee will comprise of representatives of every department relating to women under the Deputy Commissioners and temporary shelter will be provided to women /vulnerable persons. The efforts are worth appreciating, however, it is believed that every single penny shall be guarded jealously and it shall be ensured that deserved receive their ‘due’ without any loss of time and things shall not be on papers and figures but shall, hopefully, satisfy their purposes and objectives. All the ends shall ensure their active participation and fruits, hopefully, shall appear in days.

7. At this juncture representative of Women Development Department contends that pursuant to above referred orders, Commission on domestic violence has been notified on 16.03.2018, accordingly 29 posts of Protection Officers are to be created under the SNE and 4 posts are created at present, further Finance Department has advised for creation of remaining 25 posts in SNE 2019-2020, such SNE has been submitted. It is admitted that for the last years of promulgation of Domestic Violence (Prevention and Protection) Act, 2013, same is not implemented due to various hurdles, notes submitted further show that Committees as per requirement would be notified within fifteen days as well there are certain amendments which are to be made in such Act as suggest by Sindh Commission on Human Rights and Commission on status of women; such report is submitted by Women Development Department. The plea of improvements/amendments in a law, I insist, can never be a justification in delaying enforcement of an ‘Act’ else it would amount doubting the competence and wisdom of the ‘legislatures’ which authority lies with none. The moment a law is passed it carries impression of perfection/completion to meet the situation (objective) for which it is enacted. The time or change in situations may open the possibilities of ‘amendments’ but such plea can never be an excuse to give an effect to law. I am forced to regret such plea particularly when the vitality of such law was insisted by Section 3 thereof. The vitality of the Act was always demanding a prompt action and notification of ‘Commission’ as well protection officers which, however, remained hanging till hammered by this Court. This Court, being ultimate guardian of law and that of fundamental rights, shall always keep hammering as and when notices any thing alike however, government was/is always believed to be more vigilant as it (government) is, otherwise, directly answerable to its people, therefore, I believe that in future no such negligence shall be shown nor the ‘government’ shall ever come with such an excuse in future. It shall ensure implementation of Domestic Violence (Prevention and Protection) Act, 2013 in its letter and spirit.

1. Since Child Protection Authority, Social Welfare Department, Women Development Department, Commission on Status of Women are working in same field separately with separate budget and with separate workforce, thus judicial propriety demands SOPs and mechanism for effective delivery of all the departments jointly hence Mr. Tauha Farooqui, Secretary, Social Welfare Department, Government of Sindh, Ms. Anjum Iqbal, Additional Secretary Women Development Department and Chairman, Commission on Status of Women, Director General Child Protection Authority shall submit such mechanism after due consultation and deliberation thereby assuring complete implementation of Domestic Violence (Prevention and Protection) Act, 2013 and Sindh Child Protection Authority Act, 2011 and other relevant laws in field. Besides, complete details of orphans houses/places owned by the government or any Scheme shall be submitted before next date of hearing.

9. It would be pertinent to mention here that since the scope of the Act is much wider and prima facie is aimed to ensure immediate rescue and assistance to an aggrieved (as defined in the Act) therefore, in every single district, committees are required to be formulated hence a mechanism of ambulance/rescue service shall be provided with toll-free number accessible to everyone. The manner in which the Act itself has insisted about composition of the ‘Protection Committee’ (Section 17(2) ) is self sufficient to indicate that required objective would not be achieved unless special task force is created with special training in that field to deal with women, children and destitute persons, therefore, it is hoped that this aspect shall be considered by the quarter concerned. Such force shall be provided rescue vehicles having sufficient space with capability to rescue the victim of domestic violence, in every district. It is pertinent to mention that a psychologist including Protection Officers and other posts in each districts shall be filled within three months, same is demand of the Act. Since such Act provides shelter homes in every district, fate of safe houses shall also be decided by the above referred departments whether same shall be governed under that referred Act? or government may choose to establish parallel shelter homes.

1. Since such Act is in field since 2013 but Province of Sindh has failed to comply with Section 3 of Domestic Violence (Prevention and Protection) Act, 2013, which states that:

“3. Government shall ensure that:-

(a) this Act and the contents thereof receive wide publicity through electronic and print media in Urdu and local languages;

(b) the Government officers, the police and the members of the judicial service are given periodic sensitization and awareness training on the issues addressed by this Act; and

(c) effective protocols are formulated by the concerned Ministries and Departments dealing with health, education, employment, law and social welfare to address the issue of domestic violence and that the same are periodically revised.”

Hence, campaign shall be launched by all departments by taking steps on emergency basis in every district by using social as well electronic and print Media by including it in public interest Seminars. As well District Judges shall be taken onboard. The campaign must not only make the people aware about the objective of the Act but should also make it known to people that the doors of the Courts of Magistrate shall always be open to an aggrieved or an informant for immediate rescue/help, as provided by Section 7 of the Act and even no formality to approach concerned police station is needed. Worth to add here that resort to any other available legal remedy shall never be taken as a bar to what the Act itself provides to an aggrieved (Section 27 of the Act). The Magistrates shall ensure what the objective of the Act demands of them i.e not only wiping the tears of the cheeks of aggrieved but restoring what is snatched or attempted to be snatched of them while making them a victim of ‘domestic violence’. Learned Prosecutor General Sindh shall ensure that Prosecutors are assigned to assist the applicants and Courts accordingly.

11. Besides, learned MIT was directed to circulate Domestic Violence (Prevention and Protection) Act, 2013 to all Magistrates, accordingly report shall be submitted quarterly with regard to cases of domestic violence and action taken thereon.

1. Office shall send one set of every petition after receiving from the parties, to concerned Magistrate for hearing the parties and disposal thereof in accordance with law, except CP No. S-331/2019 wherein one lady who is from Jordan and claims that she has been deprived of property by her brother. Chairman, Commission on Status of Women present contends that they will provide every assistance to that lady however that lady may pursue her remedy as provided under the law.

2. CP No. S-331/2019 is disposed of. CP No. S-1957/2018 is disposed of in terms of order dated 07.02.2019 regarding maintenance to be adjudicated by family Court.

3. Office shall not entertain any petition regarding domestic violence, as such Act provides alternative and efficacious remedy by approaching concerned Magistrate. Learned MIT shall ensure compliance of Section 11 of the Act in its letter and spirit. Concerned Magistrates shall receive harassment applications and entertain the same as well shall update the same in workflow management web portal.

4. At this juncture, while feeling very pertinent role of police regarding harassment issue, all D.I.Gs of the Province shall start awareness campaign and refer the case of harassment in above categories to the learned Magistrates for disposal in accordance with law, till finalization of Committees and Rescue force in each district.

All captioned petitions are disposed of. A copy of this order be placed in CP No. S-2658/2018 wherein all concerned departments shall submit reports on monthly basis.

(Y.A.) Petition Disposed of.

PLJ 2020 Karachi 65 (DB) [Sukkur Bench]

Present:Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ.

KHADIM HUSSAIN and 18 others--Petitioners

versus

PROVINCE OF SINDH through Secretary, Irrigation Department Sindh and 4 others--Respondents

C.P. No. D-1043 of 2018, decided on 13.6.2018.

Constitution of Pakistan, 1973--

----Arts. 9, 190 & 199--Water rotation program--Installation of unauthorized lift machines--Discharge of Nara Canal--Short fall of water in River Indus--Distribution of water as per entitlement--Discharge of water through theft--Submission of report by magistrate regarding illegal lift machines--Fundamental right--Obligation of irrigation authorities--Principle of equity--Every citizen has fundamental right as enshrined in Constitution of Islamic Republic of Pakistan, 1973, which is guaranteed and state is responsible to ensure such guarantee--Pure drinkingwater is right of every single citizen but regretful to admit that in tail-end areas and remote areas their priority is to have water regardless of its suitability for drinking standard or otherwise--Any breach or tampering with design discharge always results in effecting rights of those to follow, therefore, supply of water by way of construction, maintenance and regulations of canals, has been made prime rather sole obligation/duty of Irrigation Authorities--None would complain even on rotation Programme if object and intention thereof is to ensure equity--Legally irrigation officials cannot come forward with plea of being helpless rather would be required to justify any such failure or negligence else to face consequences i.e. payment of compensation--At one hand, irrigation authorities admit position so critical that they seem to have become incapable to provide water but at same time their conduct is quite negligent as admittedly illegal lift machines and illegal electric connections are being used/continued--Irrigation authorities would never be justified in claiming themselves helpless towards performing their obligations which shall always include a legal action against any person if his acts or omissions appear to be resulting in hampering/interference in supply/flow of water from top to end/tail--Department always represents Government hence representative of a department would not be justified while complaining about non-co-operation by law enforcing agencies or status/high position of guilty/violator of law and obligations--Despite a categorical undertaking by Chief Engineer Irrigation that no violation of Act shall go un-noticed but 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--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 rank of superintendent engineer and two irrigation experts working in private sector who shall visit Nara Canal, examine 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 interest of tail-endkhatedars and whether same is justified or otherwise?--The committee shall also point out any violation/breach of 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 period of huge increase in command area; approval of lift machines up-to Mundh Jamrao and legality thereof--Since a challenge in petition was made with reference to water rotation programme for which it would suffice to say that since application of Section 28 of Act is vailable with Irrigation authority hence petition seems to have found its answer--Further, it is added that such exercise (water-rotation Programme) may be continued, if circumstances, so demands--However, this shall not be exercised at cost of rights of other khatedars--A proper publication of water rotation programme shall however be made in advance--Petition disposed of.

[Pp. 70, 71, 73, 75, 78 & 81] A, B, C, D, E, F, G, H & I

Mr. Irfan Ahmed Baloch, Advocate for Petitioners.

Mr. Ahmed Ali Shahani, Assistant Advocate General Sindh along with AftabAli Talpur, Executive Engineer and Imdad Hussain, Assistant Engineer for Respondents.

Date of hearing: 13.6.2018.

Order

Salahuddin Panhwar, J.--Through instant petition, the petitioner has challenged the legality and competence of water-rotation Programme at different government channels thereby resulting in denial to rights, guaranteed by Constitution. There was also complaint of use of lift-machines. None could deny the importance of water into our lives because Holy Quran says:

“By means of water, we give life to everything”

1. The agriculture is considered as back-bone of economy of Sindh, as well as country, therefore, the right of every farmer/ zamindars to have due share of water is not less than a guarantee, provided by Article 9 of Constitution as same is for livelihood of such a person. Reference may well be made to case of Pir Imran Sajid & others 2015 SCMR 1257 wherein it is categorically observed as:

“9. It is now well established that right to life as envisaged by Article 9 of the Constitution, includes the right to livelihood and as laid down in the case of Abdul Wahab (supra), the “right to livelihood, therefore, cannot hang on the fancies of individuals in authority....”.

There could be no green in absence of blue therefore, every holder of agricultural land must be provided equitable right to have green by providing due share as per available discharge. Since, the complaint of non-receipt of water, undeniably, falls squarely within meaning of Article 9 of the Constitution and prima facie was of involving public at large, therefore, vide order dated 07.6.2018 the reports were called from official respondents (irrigation authorities) couple with report from learned District and Sessions Judge, Khairpur, Sukkur and Sanghar.

1. Accordingly, Executive Engineer is present and submits comments along with written statement appended with plethora of documents relating to private pumping machines, government lift channels and illegal lift machines over Nara Canal. Executive Engineer Nara Canal Division Khairpur contends that his jurisdiction is from RD-02 to RD-550 (Mundh Jamrao); that there are 47 approved government channels which suck water through lift machines as well 188 private lift/pump machines approved by Chief Minister Sindh as well Secretary Irrigation Sindh. Whereas, 256 unauthorized lift machines are on NaraCanal. Albeit they have tried to remove illegal lift machines, but due to law and order situation, unable to do so; that there are other lift machines which are movable, installed on tractors, usually booked by land lords for getting water through theft in the night time. He contends that total discharge of Nara Canal is 13650 cusecs, whereas, for approved/sanctioned channels the limit is 600 cusecs. Hence, irrigation authorities are bound to provide 13000 cusecs at MundhJamrao; that there are three other divisions; Thar, Jamrao and Mithrao, which are responsible to provide/regulate share of water to irrigate the lands on their command areas up to tail-end. Whereas, he is bound to provide such sanctioned water up to Mundh Jamrao. In comments, it is also pleaded that due to short-fall of water in River Indus the irrigation authorities are unable to provide due share of water hence rotation Programme is being introduced within meaning of Section 28 of Act.

2. Learned AAG Sindh contends that Chief Minister Sindh is not competent to sanction the lift machines; that in order to regulate distribution of water as per entitlement, it would be in the interest of justice to direct law enforcement agencies to supervise/monitor NaraCanal particularly from RD-02 to RD-550. It is also contended that there is no concept of minor or water course upto MundhJamrao, hence Head, installed by irrigation authorities are apparently illegal; that huge increase in command area upto Mundh Jamrao, shall be re-examined, as allotment of dunes and approval of lift machines, appears to be favour to a selected political class in various regimes.

3. At this juncture, Executive Engineer contends that except Rangers, police officials would not be in a position to rescue the irrigation authorities in order to regulate the irrigation system. Learned Assistant Attorney General, present, contends that federal law enforcement agencies would provide every assistance to the Province of Sindh.

4. The shortfall in main-source (Indus River) is no more a secret however, this sole plea/ground was/is never sufficient for an authority to act arbitrarily/in a discriminate manner or guilty of negligence thereby denying rather depriving the tail-end to receive water. On the other hand, this short-fall requires much more vigilance and indulgence on part of Irrigation Authorities from top to bottom to ensure that equity prevails. We would come to this aspect later.

The use of lift-machines though is permissible at places where the water-lever is so low that practically due share cannot be obtained except by use of lift-machines. This however requires a proper sanction by competent authority (Irrigation Department) but what we have seen in reports of Judicial Officers speaks otherwise.

1. Learned District and Sessions Judge Sukkur deputed a Magistrate, who has submitted report which contains 120 illegal lift machines, which are functional, same shows unauthorized lift pumps from RD-02 to RD-220 which are 183 and names of owners are also mentioned. As well, we have received report of learned Magistrate Nara, District Khairpur, which contains that he observed that:

“most of the source of energy supplied to lift machines were due to supply of transformers which were almost illegal and without any NOC from Irrigation Department. Even and otherwise it was also brought to my notice by public that most of the transformers were either illegal or were issued in the names of persons in respect of their homes, Atta Chakki and Ara Machine. I had also pointed out such complaint to Line Superintendent of SEPCO and directed to produce such approval or record of transformers issued for lift machines who failed to produce such record, hence such non production of record from SEPCO Authorities the transformers attached with lift machines seem to be illegal.”

Further, he has submitted details of private lift machines including unauthorized and functional with names of beneficiaries. As well, we have received report of Civil Judge and Judicial Magistrate-II Sanghar, which is that:

“In compliance of the orders passed by Honourable High Court of Sindh, Sukkur Bench @ Sukkur in above mentioned Constitutional petition, your kind honour was then pleased to depute the undersigned as visiting judge for checking the lift machines approved or unapproved (functional or dis functional), for which the undersigned duly complied with the said orders and now submits herewith the following report.

It is submitted that undersigned visited first the Lower Nara Canal, which starts from Head Jamrao point, R-D No. 01, Bakhoro Sub-division, District Sanghar to R-D 530 Farash division District-Umerkot and found as follows:

During visit of Bakhoro Sub- Division, it was observed that two lift machines were installed at RD-16 and RD-18, out of which one was disfunctional at RD-16. The Assistant Executive Engineer Bakhoro Sub-division Mr. Arif Memon submitted his report about the said machines that both the machines are approved by the department and he further submitted that the land of lower Nara Canal is cultivated through modules, because command area of lower Nara Canal is being cultivated through gravity flow and the land is below from the full supply level of lower Nara Canal. It is gravity flow and the land is below from the full supply level of lower Nara Canal. It is relevant to mention here that on the day of visit, the water supply in Re-aligned Nara Canal at RD 72 D/S was at about “Zero level”.

During visit of Nara Canal Farash Sub-Division,’ the undersigned found that two lift machines were installed at RD 369 R/S for water supply to Khipro town, one machine was lying installed at RD-470 right side by one Mir Sohrab Khan Mari, (as informed by officials). The Assistant Executive: Engineer Irrigation Farash Sub-division Nara Canal, Mr. Mola Bux Laghari submitted that no any approved lift machines along lower Nara Canal form RD-280 to RD-530 was mentioned in their office record. He further submitted that about 116 pipes outlets are approved from RD-280 to RD-530.”

(Emphasis is supplied)

7. Perusal of above shows that such report is appended with photographs showing therein that no water is available at RD-550, meaning thereby after this site all citizen including khatedars are facing great hardship since many months as well as since years. Since water falls within the term of life and every citizen has fundamental right as enshrined in the Constitution of the Islamic Republic of Pakistan, 1973, which is guaranteed and state is responsible to ensure such guarantee. We would also add that it is the prime source for drinking water too therefore, responsibility becomes rather serious to ensure proper supply of water least when it comes to matter of drinking water. Though, pure drinkingwater is right of every single citizen but regretful to admit that in tail-end areas and remote areas their priority is to have water regardless of its suitability for drinking standard or otherwise.

8. We would not hesitate in acknowledging that by introduction of Act, the intention and the purpose was/is never meant to please big-zamindars or those, having their lands at the ‘mundh’ (upstream) but undeniably was/is to ensure equitable distribution of water among all khatedars (farmers) regardless of their holdings and their position on source of water (water-course/minor etc). The preamble of the Act shall make this fact clear which reads as:-

“Whereas it is necessary to make provision for the construction, maintenance and regulation of canals, for the supply of water therefrom and for the levy of rates for water so supplied, in the (Province of Sindh); It is acted as follows:-

The purpose and concept of heads, gates and modules are nothing but to first receipt of proper discharge and then supply thereof to whole command areas of Canal. Any breach or tampering with design discharge always results in effecting the rights of those to follow, therefore, supply of water by way of construction, maintenance and regulations of canals, has been made prime rather sole obligation/duty of Irrigation Authorities.

9. Thus, legally, the fixed cultivation figure is meant from top to end and since it is based on equity therefore, shall normally never open a room of complaint to any of the farmer/zamindar even in cases of short-fall in Indus River. None would complain even on rotation Programme if object and intention thereof is to ensure equity. If so then the answer to general cries all at the tail-end areas in all over Sindh could be nothing but result of negligence or excess on part of quarter concerned i.e. Irrigation Authorities (Government of Sindh). Needless to say that legislatures have not vested uncontrolled authority/jurisdiction in concerned rather by insertion of Part-V in the Act with title ‘of the Award of Compensation’ made it quite clear that a deliberate omission in discharge of official obligation, if resulting in causing damage to farmer/zamindars, would give a right to such aggrieved to claim ‘compensation’. Here relevant Sections of part-V are reproduced for ease and understanding that an attempt has been made to keep balance between rights and obligations.

“31. Compensation may be awarded in respect of any substantial damage caused by the exercise of any of the powers, conferred by this Act, which is capable of being ascertained and estimated at the time of awarding such compensation:

Provided that no compensation shall be so awarded in respect of any damage, arising from--

(a) deterioration of climate, or

(b) stoppage of navigation, or the means of rafting timber or of watering cattle, or

(c) stoppage or diminution of any supply of water in consequence of the exercise of the power conferred by Section 5, if no use have been made of such supply within the five years next before the date of the issue of the notification under Section 37, or

(d) failure or stoppage of the water in a canal, when such failure or stoppage is due to--

(1) cause beyond the control of (the Provincial government);

(2) the execution of any repairs, alterations or additions to the canal, or

(3) any measures considered necessary by any Canal officer duly empowered in this behalf for regulating the proper flow of water in the canal, or for maintaining the established course of irrigation;

but any person who suffers loss from any stoppage or diminution of his water-supply due to any of the causes named in clause (d) of this section shall be entitled to such remission of the water-rate payable by him as may be authorized by the (Provincial Government)

“35. If the supply of water to any land irrigated from a canal be interrupted otherwise than in the manner described in clause (d) of Section 31, the holder of such land may present a petition for compensation to the Collector for any loss arising from such interruption, and the Collector, after consulting the Canal-Officer, shall award to the petitioner reasonable compensation for such loss”.

1. Such insertion, being deliberate, is meant to ensure a protection to rights of a farmer/zamindars in receiving his due share of water and any negligence or failure on part of quarter concerned may expose him (department) to pay compensation. Every official has to ensure discharge of his obligations and cannot escape consequences of his failure/negligence which is a fundamental rule and principle of equity in matters of damages/compensations. Reference may be made to the case of Province of Sindh v. Kabir Bokhari 2016 SCMR 101 wherein it is observed as:--

“10. ... The Government and its department are bound to act justly and fairly with the citizens of the country and in case of illegal and unlawful conduct of the government and its officials of department any loss is caused to the citizen of this country, same is appropriately be compensated. This is a fundamental rule and also principle of equity.”

11. Thus, we would conclude that legally the irrigation officials cannot come forward with plea of being helpless rather would be required to justify any such failure or negligence else to face the consequences i.e. payment of compensation. At one hand, the irrigation authorities admit the position so critical that they seem to have become incapable to provide water but at same time their conduct is quite negligent as admittedly illegal lift machines and illegal electric connections are being used/continued. Here a referral to letter of Director, NCAWB, Mirpurkhas Bearing No. RC/ D-55(a)/ NCAWB/ 803 OF 2018 MPK Dated 21.3.2018, addressed to Chief Executive Officer (Operation), SEPCO, Sukkur (attached with comments), being relevant, is made hereunder:-

“In view of massive shortfall in River Indus, a meeting of Nara Canal Area Water Board has been convened by the undersigned on 21/03/2018, to tackle the situation in hand and to manage proper supply of water not only for irrigational purpose but also for drinking purpose. The Nara Canal Area Water Board has unanimously arrived at the conclusion that some stringent measures need to be taken on emergent basis, in fact, there are a lot of private and government lift machines are functioning through electric power, alongside some unauthorized lift machines are also functioning. In this regard, this Directorate had already issued letter to you vide this office NO.RC/ D-55 (a)/ NCAWB/ 108 dated 09.5.2017 requesting to remove power supply of unauthorized lift machines in compliance with the Court order passed by the Honourable High Court of Sindh, Circuit Bench at Hyderabad in Const. Petition No. D-239/2009, but unfortunately no composite/practical action has so fare been taken from your side.

The water crises throughout Sindh province has depend to the limit and there are eminent signs of sparking worst situation for water management in the days to come which will definitely become out of control, even when the water for drinking will completely be dropped out in the off taking canals of Indus River System. At present it has become far more essential to swallow the bitter pill to avert the untoward situation of water crises.

You are requested to kindly arrange to disconnect all the electric power connection to the government and private lift pumps for one week closing and one week opening basis in order to meet the demand of water. On the other hand you are once again requested to kindly close down the electric supply to all unauthorized lift machines still functioning along Upper Nara at one.

1. In above, the seriousness of water short-fall is admitted yet no follow-up was made in one year for disconnection of illegal electric connection or use thereof from 09.5.2017 to 21.3.2018. Such attitude is not worth appreciating when admittedly the cries in respect of water are, now, touching to sky.

2. The bona fide would not find satisfaction by beautifying a correspondence but would require an action and since the Act does contain Part-III, titled as ‘of penalties’ therefore, before pleading bona fide the concerned official shall be required to establish taking of all positive and legally permissible steps against the one, whose actions or omissions appear to have resulted in interference in supply of water. The part-III of the Act includes Section 64. The same reads as:

‘64. Any person in charge, of, or employed upon, any canal may remove from the lands or building belonging thereto, or may take into custody without a warrant, and take forthwith before a Magistrate or to the nearest Police-station, to be dealt with according to law, any person who within his view

(1) willfully damages, obstructs or fouls any canal, or

(2) without proper authority interferes with the supply or flow of water, in or from any canal, or in any river or stream so as to endanger, damage, make dangerous or render less useful any canal”.

14. From above, it is prima facie no more ambiguous that the Irrigation authorities would never be justified in claiming themselves helpless towards performing their obligations which shall always include a legal action against any person if his acts or omissions appear to be resulting in hampering/interference in supply/flow of water from top to end/tail. The picture, so appeared from the reports prima facie shows negligence rather failure on part of the Irrigation Authorities in discharge of their obligations rather mandatory duties. The department always represents the Government hence representative of a department would not be justified while complaining about non-co-operation by law enforcing agencies or status/high position of guilty/violator of law and obligations. Letting one to suck the water share of other by means of breach of outlet or use of illegal lift machines is nothing short of an attempt to put guaranteed fundamental rights of others in serious jeopardy, which authority, we would emphasis, lies with none.

1. The negligence and exercise of jurisdiction in issuing direct outlets was even earlier taken notice of by Honourable Apex Court in a case, reported as 2014 SCMR 353. The same, being very relevant, is reproduced hereunder:

... On the last date of hearing, after receipt of the report, following order was passed:-

…

…

…

(3) It appears that the outlets have teen sanctioned in violation of law and in relaxation of the ban which has been imposed as per letter No. 2/687- S.O(OP)/70-Vol-III, dated 2-1-1999 but in the relaxation of this ban from time to time, outlets are sanctioned in favour of influential and interested persons without acknowledging that due to such acts, the lands of farmers/zamindars situated at tail shall not get water equal to their share because, before reaching the tail mostly the whole water is taken by upper riparian. These farmers/zamindars at the tail have every right to protect their property under Article 24 of the Constitution as they are also earning livelihood for their families. In such view of the matter, we direct the Secretary, Irrigation that immediately he should take action to protect their interest.

(4) ………………….

(5) The above report is sufficient to conclude that Irrigation department is not discharging its functionsbecause even if it is presumed that the outlets have been sanctioned legally but no authority has been conferred upon these persons to utilize water more than the sanctioned size by tampering with the outlets.

(6) Under the circumstances, we direct the Secretary Irrigation to visit all the outlets, personally, a list of which has been provided by the Chief Engineer along with the DIG and other force, if necessary and ensure that all these persons to whom outlets have been sanctioned, strictly comply with the sanction. He should also examine all the cases separately and, if found against the law, issue the notices to the owners. He shall take action as per law and shall submit comprehensive report on 3.12.2013 at Islamabad. He would also intimate all the persons whose names have been mentioned in the list and those whose cases shall be examined by him to appear, if they so desire before the Court at Islamabad on 3-12-2013.

1. …… We feel that the provisions of the Sindh Irrigation Act, 1879 are required to be strictly observed so that nobody can encroach upon the rights of others, as the farmers are earning their livelihood to protect and their own life and their families, which is a fundamental right guaranteed under Article 9 of the Constitution.

5. …….The Chief Engineer Irrigation, present in Court, states that in future there shall be no violation of the Act by any of the farmer/zamindars, and if any one violates the same, he will be dealt with in accordance with law. However, he seeks an observation from the Court that local police shall co-operate with them. Though it has already been observed, yet we direct DIG Hyderabad and D.P.Os. of the Districts under his control to take action against the persons involved in water theft etc. It may not be out of context to mention that before approaching the police authorities, the irrigation authorities shall satisfy that there is violation of law. Moreover, the provisions of Section 28 of the Sindh Irrigation Act shall be strictly observed, so that nobody could take the law in his hands.

1. From above, it is quite obvious that the Honourable Apex Court categorically observed the following while acknowledging the same to be guaranteed rights and obligations and in line with Act i.e.:-

i) outlets are being sanctioned in violation of law and rules in consequences whereof tail does not get water equal to their share because, before reaching the tail mostly the whole water is taken by upper riparian;

ii) Irrigation department is not discharging its functions properly;

iii) without prejudice to legality or otherwise of such outlets no authority has been conferred upon these persons to utilize water more than the sanctioned size by tampering with the outlets;

iv) the provisions of Section 28 of the Sindh Irrigation Act shall be strictly observed, so that nobody could take the law in his hands.

v) The D.P. Os (Sr. Superintendent of police) were directed to take action against the persons involved in water theft etc.

vi) there has been categorical undertaking by Chief Engineer Irrigation that in future there shall be no violation of the Act by any of the farmer/zamindars, and if any one violates the same, he will be dealt with in accordance with law. (emphasis supplied)

1. The crux of above judgment of honourable Apex Court was nothing but an assurance of the guaranteed fundamental rights of every farmer/zamindars (regardless of his holding and, position/ turn of water) that he shall receive his due share of water on principle of equity even when the situation demands exercise of jurisdiction under Section 28 of the Act. This shall not find satisfaction if negligence or failure on part of the Irrigation Authorities is allowed to continue only in name of short-fall of water or names of big-guns, involved in violating the Act. In short, a proper compliance of above directions/ observation shall not be satisfied if, every illegal lift machine, illegal out-lets, damage/breach to source of water, as well use of sanctioned lift machine/out-let in excess of its purpose i.e. to take its share only are not immediately brought to an end so that water-flows from top to end/tail as per received discharge.

2. Needless, to say that such observations were/are of binding effect and leave no body with any escape to avoid the same, however, regretful to say that position is not different rather appears to be worst as admittedly hundreds of illegal and unauthorized lift machines are functioning which is nothing less than an admission of violation of Act at the cost of those, whose water share is sucked before reaching to them. This otherwise is a prima facie violation of the directives, made by Honourable Apex Court as well obligations, arising from the Act itself?

3. 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 increase in 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 NaraCanal as well as lift machines on government Channels up-to MundhJamrao 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 and 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 and 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 and 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 MundhJamrao, 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 RohriCanal 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 vailable with the Irrigation authority hence petition seems to have found its answer. Further, it is added that such exercise (water-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, we 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.

(Y.A.) Petition Disposed of

PLJ 2020 Karachi 81 (DB)

Present:Aqeel Ahmed Abbasi and Zulfiqar Ahmed Khan, JJ.

M/s. BOMBAL LEATHERS through Authorized Representative--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Rev. & S/Chairman FBR and 2 others--Respondents

Const. P. No. D-2451 of 2019, decided on 12.4.2019.

Constitution of Pakistan, 1973--

----Art. 199--Income Tax Ordinance, (XLIX of 2001), Ss. 122-A(5A) & 131--Initiation of recovery pendency--Filling of appeal--Application for grant of stay during producing of appeal--Dismissed--Alternate remedy--Maintainability--Challenge to--We are of view that without availing such statutory remedy, instant petition under Article 199 of Constitution is misconceived and hot maintainable as alternate remedy is available--While confronted with hereinabove position, learned counsel for petitioner submits that petitioner will be satisfied and will not press instant petition, provided petitioner may be allowed to file an appeal before Appellate Tribunal, Inland Revenue in terms of Section 131 of Income Tax Ordinance, 2001 within 15 days and to obtain appropriate order, provided respondents may be restrained from enforcing recovery of impugned demand during pendency of such appeal before Appellate Tribunal--Till decision of appeal by Appellate Tribunal appeals filed by petitioner within 15 days, respondents not enforce recovery of impugned demand subject matter of before Appellate Tribunal--Petition disposed of. [Pp. 83] A, B & C

Mr. Saathi M. Ishaque, Advocate for Petitioner.

Ms. Lubna Pervez, DAG.

Date of hearing: 12.04.2019.

Order

1. Urgency granted.

2. Exemption granted subject to all just exceptions.

3 & 4. Through instant petition, petitioner has impugned the recovery proceedings initiated by the respondents pursuant to order passed under Section 122(5A) of the Income Tax Ordinance, 2001 for Tax Year 2016 and has also impugned the order dated 03.04.2018 passed by the Commissioner Inland Revenue (Appeals-IV), Karachi, whereby, application for grant of stay has been dismissed. Per learned counsel, the Commissioner has summarily dismissed the stay application filed by the petitioner against the recovery of the impugned demand, without assigning any reasons, and thereafter, the respondents have threatened the petitioner for recovery of the impugned demand through coercive measures, including attachment of the bank accounts of the petitioner. It has been prayed that impugned order dated 03.04.2019 and the recovery proceedings may be quashed.

Record shows that petitioner has filed an appeal against an order passed under Section 122(5A) of the Income Tax Ordinance, 2001 alongwith stay application before Commissioner (Appeals) Inland Revenue, which is pending disposal, however, order has been passed on stay application filed by the petitioner by the Commissioner (Appeals), whereby, the request of the petitioner seeking stay against the recovery during pendency of appeal has been declined. Such order on stay application is an adverse order which can be assailed under

Section 131 of the Income Tax Ordinance, 2001 before the Appellate Tribunal, Inland Revenue, therefore, we are of the view that without availing such statutory remedy, instant petition under Article 199 of the Constitution is misconceived and hot maintainable as alternate remedy is available. While confronted with hereinabove position, learned counsel for the petitioner submits that petitioner will be satisfied and will not press instant petition, provided the petitioner may be allowed to file an appeal before the Appellate Tribunal, Inland Revenue in terms of Section 131 of the Income Tax Ordinance, 2001 within 15 days and to obtain appropriate order, provided respondents may be restrained from enforcing the recovery of the impugned demand during the pendency of such appeal before the Appellate Tribunal.

Learned DAG present in Court submits that under similar circumstances, a constitutional petition was disposed of in similar terms. Accordingly, instant petition stands disposed of with the directions to the petitioner to seek remedy against the impugned order dated 03.04.2019, whereby, application for stay against recovery of impugned demand has been rejected by the Commissioner Inland Revenue (Appeals-IV), Karachi, by approaching the Appellate Tribunal Inland Revenue, in terms of Section 131 of the Income Tax Ordinance, 2001 within 15 days from the date of this order and to obtain appropriate order on such appeal in accordance with law. However till decision of the appeal by the Appellate Tribunal, if appeal is filed by the petitioner within 15 days, the respondents shall not enforce the recovery of the impugned demand subject matter of appeal before Appellate Tribunal, through coercive process, including attachment of bank accounts of the petitioner.

Petition stands disposed of in the above terms alongwith listed application.

(Y.A.) Petition Disposed of

PLJ 2020 Karachi 83

Present:Muhammad Junaid Ghaffar, J.

Ms. SERWAT AZIM--Plaintiff

versus

SINDH BANK LIMITED through President/CEO and 7 others--Defendants

Suit No. 419 and C.M.A. No. 3305 of 2019, decided on 23.4.2019.

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

----S. 94--Specific Relief Act, (I of 1877), Ss. 42 & 53--Suit for declaration, injunction and recovery--Issuance of show-cause notice--Charge-sheet--Non joining of departmental inquiry proceedings--Allegations of--Pendency of inquiry proceedings--Balance of convenience--It would not be appropriate for this Court to delve upon same at this stage of proceedings lest it may prejudice case of any of parties--However, it may be observed that even otherwise, Courts are always reluctant to interfere in matters pertaining to relationship of Master and Servant and that too, at stage of inquiry and departmental proceedings--Plaintiff has only been asked to respond to charge sheet and appear before inquiry committee as per inquiry letter which states that to give a fair chance to defend, Plaintiff may come forward and defend case and may also lead her own evidence--Plaintiff has come to Court prematurely by impugning Charge Sheet to which she has already filed a reply and inquiry is pending which she is avoiding to attend on one pretext or other--It is not that any final / adverse order has been passed against her--I am of view that this is not a case wherein, this Court may exercise any discretion in favour of plaintiff as only ground urged on her behalf is regarding alleged misconduct in inquiry proceedings, which is not justified or made out from record otherwise-- Plaintiff has failed to make out a prima facie case nor balance of convenience lies in her favour, whereas, it is Bank which is going to suffer irreparable loss if any injunctive orders are passed--Application was dismissed.

[Pp. 86, 87 & 90] A, B, C, D & E

PLD 1976 Karachi 301 and PLD 1976 Karachi 376 ref.

Mr. S. Ali Ahmed Tariq, Advocate for Plaintiff.

Mr. Faisal Mehmood Ghani, Advocatefor Defendants.

Date of hearing: 23.4.2019.

Order

This is a Suit for Declaration, Injunction and Recovery, whereas, through listed application under Section 94 C.P.C., the Plaintiff seeks a restraining order against the Defendants from proceeding further against the Plaintiff pursuant to a charge sheet, suspension order, notice of inquiry and a supplementary charge sheet.

1. Learned Counsel for the Plaintiff submits that Plaintiff was appointed on 30.05.2014 in Defendant No. 1 (“Bank”) and was thereafter, confirmed in service and continuously was being granted enhanced remuneration and promotion for her good performance. Per learned Counsel, the Plaintiff is aggrieved by charge sheet dated 1.1.2019 which has been issued without any show-cause notice and without providing the documents referred to in the charge sheet and as mentioned in Para 9 of the plaint. He submits that reply has been filed; but the Defendants are bent upon to proceed with the inquiry, and it is apprehended that an adverse order would be passed without following due process and affording appropriate opportunity to the Plaintiff to respond to the allegations. He has prayed that the Defendants be restrained from proceeding further, and be further directed to first provide the documents as mentioned in Para 9 of the plaint.

2. On the other hand Learned Counsel for Defendants has raised a preliminary objection to the effect that an application under Section 94, C.P.C. could only be filed as supplemental proceedings, whereas, there is no injunction application independently filed by the Plaintiff. Per learned Counsel, a proper charge sheet as well as a supplementary charge sheet has been issued which states the entire set of allegations and is in fact a Show Cause Notice by itself; hence, the objection to this effect is unwarranted. He has further argued that the Plaintiff by filing instant Suit has avoided to join the inquiry and the departmental proceedings, whereas, the Defendants out of respect to the Court, and without there being any restraining order, have not yet finally proceeded against the Plaintiff. Per learned Counsel, there are serious allegations against the Plaintiff pursuant to certain inquiry by FIA and State Bank of Pakistan against fake accounts operated by OMNI Group in which the Hon’ble Supreme Court had also taken certain suo motu notice, whereas, the allegations are of serious nature, and therefore, the Plaintiff’s name has also been placed in Exit Control List by the Ministry of Interior. According to him, the matter is still under inquiry and proceedings are pending before the Bank; hence, no case for an injunction is made out and the Plaintiff has approached this Court prematurely. Per learned Counsel, the arguments that Plaintiff has not been provided the H. R. Policy is also misconceived as at the time of employment all employees are provided the H. R. Policy, whereas, this objection is an afterthought to delay the proceedings. According to him, the Bank is proceeding in accordance with the policy and the relationship between the Plaintiff and the Defendant Bank is not subject to intervention by this Court through an injunctive relief, being that of a master and servant. In support he has relied upon the cases reported as Pakistan International Airlines Corporation and 5 others v. Muhammad Izharul Ahsan Qureshi (PLD 1979 Karachi 640), Messrs Volkervam (Pakistan) Ltd. and others v. Syed Hamid Hussain (1988 MLD 2067), Muslim Commercial Bank Ltd. I. I. Chundrigar Road, Karachi and another v. Muhammad Shafi (2002 PLC 124) and Province of West Pakistan and another v. Malik Asghar Khan (1971 SCMR 569).

4. I have heard both the learned Counsel and perused the record. Through listed application the Plaintiff seeks a restraining order against the Defendants from proceedings further on the basis of a charge sheet as well as a supplementary charge sheet. Insofar as merits of the allegations and the response of the plaintiff is concerned, it may be observed that it would not be appropriate for this Court to delve upon the same at this stage of the proceedings lest it may prejudice the case of any of the parties. However, it may be observed that even otherwise, Courts are always reluctant to interfere in matters pertaining to relationship of Master and Servant and that too, at the stage of inquiry and departmental proceedings. There is a plethora of case law to this effect, whereas, at the present moment the Plaintiff has only been asked to respond to the charge sheet and appear before the inquiry committee as per the inquiry letter dated 22.1.2019 which states that to give a fair chance to defend, the Plaintiff may come forward and defend the case and may also lead her own evidence. For the present purposes, in fact there appears to be no justifiable cause to invoke the jurisdiction of this Court, whereas, an attempt has been made to make out a case by demanding certain irrelevant documents as stated in Para 9 of the plaint. This on the face of it, appears to be an afterthought and an attempt to delay the proceedings initiated against the Plaintiff. Indeed and as already observed, that it is not appropriate for this Court to dilate upon the merits of the case, as it may prejudice the Plaintiff’s case in the inquiry; however, it appears that through the charge sheet as well as the supplementary charge sheet, the Plaintiff has been confronted with allegations of serious nature which emanate from the operating procedures of a Bank, and the Plaintiff who was working as a Branch Manager, is required to have knowledge about the Bank’s Regulations as well as directions of the State Bank of Pakistan, more specifically, the well-known operating procedure, “know your customer” (KYC). The charge is more in relation to this aspect of the opening of the accounts and for that, there appears to be no justification for the Plaintiff not to respond. The argument that the Plaintiff is not in possession of various documents is also misconceived inasmuch as the Plaintiff has to first approach the inquiry committee and then ask for the documents, and if the inquiry committee, feels that such documents have relevance and are being considered by them for proceeding further against the Plaintiff, then they are required to provide the same and not otherwise. The Defendants have also stated that they will act according to the procedure as provided in the H. R. Policy. In the counter affidavit the Defendants also placed on record Clause 15 of the H. R. Policy which deals with Discipline. Insofar as demand of letter of SBP dated 18.12.2018 is concerned, the same has been provided, whereas, the attached annexures contain some secret and confidential information which is not related to the Plaintiff; hence it has not been provided. It further appears that the Plaintiff has already given her detailed response to the charge sheet, responding to each and every allegation and this otherwise does not require providing any other document which may enable her to respond. She has already filed her response in detail, whereas, the requisite documents, if any, have already been provided to the Plaintiff and therefore, no further case is even otherwise, made out.

5. Insofar as the present case is concerned, I am of the view that Plaintiff has come to the Court prematurely by impugning the Charge Sheet to which she has already filed a reply and inquiry is pending which she is avoiding to attend on one pretext or the other. It is not that any final / adverse order has been passed against her. She has been provided an opportunity to respond to the allegations / Charge Sheet(s) including cross-examine the relevant persons as stated in letter dated 22.2.2019 (Annexure-R/8) and it appears that by pre-empting an adverse order, she has come to the Court and seeks a restraining order. On perusal of the record I am not convinced that she is not being provided proper opportunity of contesting the allegations as mentioned in the charge sheet(s). In fact it appears to be case wherein she on the facts and circumstances of the case and her defence, is sensing an adverse order, and has therefore, filed instant Suit with the listed application to thwart such proceedings. As noted earlier, the record placed before the Court clearly reflects that ample opportunity has been provided and the Plaintiff instead of defending the case on merits has raised irrelevant and frivolous objections. In these circumstances, I am of the view that this is not a case wherein, this Court may exercise any discretion in favour of the Plaintiff as the only ground urged on her behalf is regarding alleged misconduct in the inquiry proceedings, which is not justified or made out from the record otherwise.

1. Having said so, it is also a settled proposition of law, that in domestic inquiries, the Courts are reluctant to interfere, whereas, they are not supposed to substitute such finding of facts, except in rare circumstances, (which are lacking for the present moment). There isn’t any patent illegality on the face of it and therefore, at this injunctive stage, it would not be proper and just to interfere and to disband or prorogue the proceedings. In the case reported as Hotel Intercontinental, Karachi v. Vth Sindh Labour Court (PLD 1976 Karachi 301), it has been observed as follows:

In the instant case I find that sufficient opportunity was given to the second respondents to contest their case and therefore there was no scope left for the Labour Court, who decidedly enjoyed limited jurisdiction to examine the correctness of the procedure adopted by the enquiry officer. A perusal of the record shows that a thorough enquiry was made by the enquiry officer who finally came to the conclusion that strike was illegal as it was resorted to without observing the procedure laid down in Section 26(1) and (3) of Industrial Relations Ordinance, 1969. The Labour Court was legally debarred from examining the validity of the domestic enquiry unless there was any patent irregularity apparent on the face of record. In this case, however, no plausible reasons have been shown by the learned Labour Court to justify interference with the results of the enquiry and give a finding that the charges of illegal strike, taking out of procession, abusing the officers and manhandling a photographer against the 2nd respondents were baseless. (Emphasis supplied)

1. Similarly in the case reported as United Distributors Ltd. v. Zahid Hussain Khan and 2 others (PLD 1976 Karachi 376) a learned Division Bench of this Court has been pleased to hold that decision arrived at in a domestic inquiry must not be upset in absence of plausible reasons justifying interference. The relevant observations are as under:

2. …… He argued that Court could interfere as did in this case when it came to the conclusion that the enquiry has been made with mala fide intention and has been made improperly. This argument is not available because respondent failed to produce any evidence with regard to mala fide on the part of the Petitioner. Next while going through the record of the case we do not see any force in the arguments advanced by the learned counsel Mr. Obaidur Rahman because admittedly Respondent No. 1 had participated in the domestic enquiry held by the Petitioner on 25-10-1972 in spite of his previous objections. During the enquiry, statements of Mr. Ilyas Baig, Personnel Officer, Mr. Shahideen, Departmental Manager and Mr. Tahir Khaliq as well as Mr. S. M. Aminuddin, Accountant, were recorded and Respondent No. 1 in fact cross-examined some of them with regard to allegations. Not only this, the domestic enquiry does show that Respondent No. 1 allowed himself to be examined at great length, and he was cross-examined by Mr. Ilyas Baig wherein he has admitted that he has written all these cash memos. When he was asked by the Enquiry Officer had he anything else to say in his defence, he replied; “I have already given my statement and have nothing to add or produce.” Each page of the enquiry report is signed by Respondent No. 1 as well as the enquiry officer and this fact has not been denied by him. Thereafter findings reached by the Enquiry Officer, was submitted to the Chairman of the petitioner who has passed the dismissal order on 27-10-1972 according to the report of the enquiry officer after perusing the proceeding of the domestic enquiry as well as the final report. It is therefore too late in the day on the part of the Respondent No. 1 to say that principles of natural justice were violated and he was not given any opportunity of being heard by the petitioner. His learned counsel when questioned as to why in spite of previous objections, the Respondent No. 1 had participated in the domestic enquiry and as to why he went to the length of giving his own statements and cross-examined the witnesses? The counsel did not make any worthwhile and satisfactory answer. It is not the case of the Respondent No. 1 that he was an illiterate person or that he was compelled to participate in the proceedings or the domestic enquiry. He was a responsible and educated officer as he was drawing salary of Rs.600 per month and he has signed each and every page of the enquiry proceedings, therefore, it cannot be said that there was any compulsion or duress on the part of the Petitioner obliging Respondent No. 1 to participate in the proceeding to which he had earlier objected. Therefore, we are of the opinion that he voluntarily submitted to the domestic enquiry. This fact is further supported by Annex. “L” dated 30-11-72 submitted by the Respondent No. 1 to the petitioner, wherein amongst others he has stated:

3. In view of the facts and circumstances of this case, we are of the opinion that both the Courts below have not applied their mind to the legal and factual aspects of this case, particularly they could not sit as a Court of appeal on the decision of the domestic enquiry and no plausible reason has been shown in the impugned orders justifying interference with order passed by the Enquiry Officer. The respondent was given full opportunity throughout to represent his side of the case and produce witnesses. He participated in the proceedings, got himself examined and cross-examined some of the witnesses and did not produce any witness in defence as is borne out by the record, therefore, it cannot be said as he has

been submitted on his behalf that he was not given any opportunity to defend himself. (Emphasis supplied)

8. In view of hereinabove discussion, I am of the view that the Plaintiff has failed to make out a prima facie case nor balance of convenience lies in her favour, whereas, it is the Bank which is going to suffer irreparable loss if any injunctive orders are passed. Accordingly, through a short order in the earlier part of the day, listed application was dismissed and above are the reasons thereof.

(Y.A.) Application Dismissed

PLJ 2020 Karachi 90

Present: Salah-ud-Din Panhwar, J.

Mst. ANEELA ZEHRA--Appellant

versus

KALEEM HAIDER and 10 others--Respondents

IInd Appeal No. 103 of 2019, decided on 7.11.2019.

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

----S. 100--Limitation Act, (IX of 1908), S. 12(5)--Filling of appeal--Dismissed--Limitation--Challenge to--Record shows that copy was applied on 13.3.2018 but cost was estimated on ‘26.3.2018’ i.e. after about ‘13 days’--When cost was estimate on ‘26.3.2018’ i.e. after 13 days of applying date then it logically cannot be presumed that during such period copying branch was ever in a position to intimate date of delivery--Thus, such period was required to be excluded within meaning of Section 12(5) supra--Here, it would be relevant to mention that judgment was passed on 08.3.2018 and appeal was filed on 17.4.2018 hence, prima facie, exceeding period was 09 days and if interval period of 13 days (when cost was assessed) is excluded, date of presenting appeal was well within period of limitation--Appellate Court has failed to examine above factual I and legal aspects, therefore, act of appellate Court in denying benefit of Section 12(5) of Act, cannot be approved--Appeal before appellate Court was within time, hence, impugned order is set aside; case is remanded back to appellate Court for decision on merits--Appeal was disposed of. [Pp. 92 & 93] A, B & C

M/s. Farhan Zia Abrar & Muhammad Rehan Qureshy, Advocates for Appellant.

Mr. Naeem Haider, Advocate for Respondents.

Date of hearing: 7.11.2019.

Order

Salahuddin Panhwar, J.--Instant appeal is against the order dated 20.04.2019, passed in Civil Appeal No. Nil of 2018, filed by the present appellant, whereby same was dismissed solely on the point of limitation. Paragraph No. 1 of the order is that:

“From the perusal of record, it appears that the learned Presiding officer of the trial Court had decreed the suit of plaintiffs/respondents against the appellants, vide judgment and decree dated 08.03.2018 passed in Civil Suit No. 87/2015. Thereafter, the certified copies were received by appellant on 12.04.2018 and appeal was filed with the delay of 39 days on 17.04.2018 without any justification and application under Article 5 of Limitation Act. 1908. Appellant despite having knowledge of impugned judgment and decree on the day it was announced, did not take steps to file appeal within time prescribed under the law.”

1. Learned counsel for the appellant emphasis over page 69. which reflects that judgment of the trial Court was passed on 08th March 2018, whereas, he applied copy of that judgment within a week on 13.03.2018 as per endorsement cost was estimated on 26.03.2018; cost was deposited on the same date i.e. 26.03.2018 and copy was ready on 29.03.2018 and he supplied stamps on that date but received the copy after the delay around 13 days. Impugned order reflects that appeal is barred by 39 days when appeal was presented on 17.04.2018.

2. Here, it would be relevant to refer Section 12(5) of the Limitation Act which reads as:

“For the purpose of sub-Sections (2),(3) and (4), the time requisite for obtaining a copy of the decree, sentence, order, judgment or award shall be deemed to be the time intervening between the day on which an application for the copy is made and the day actually intimated to the applicant to be the day on which the copy will be ready for delivery”

Prima facie, the intervening period needs to be excluded, however, ‘time requisite’ must be shown to be having nexus with due diligence, as was observed in the case of Jamila Khatoon & another v. Mst. Tajunnisa & another PLD 1984 SC 208 as:-

“7…… This rule only relates copies ready for delivery to be included in a list on the notice board and since prior to 28.11.1975 the copy was not ready for delivery for want of stamp, it could not be included in the lit under tis rule. Otherwise, apparently the appellant seems to have been aware on the aforesaid date when he supplied the stamps to the office, that the copy will be ready for delivery as soon as certification was made thereon, which is clear from the fact that he received the delivery of the copy within three days on 1.11.1975. It has been held by this Court in the case of Fateh Muhammad v. Malik Qadir Bakhsh (1) that time requisite for obtaining copy means only the interval between the date of application for supply of copy and the date when it is ready for delivery, but even during this interval due diligence on the part of the litigant is required by law, and no delay unless such as was caused by circumstances over which he has no control and which could not by due diligence be avoided, can form part of time “requisite” for obtaining the copy”.

1. It can safely be added that the time consumed in obtaining the copy needs to be excluded unless circumstances proves, prima facie, negligence on part of the litigant and such litigant attempts to substitute his own negligence under shade of said provision. It, however, needless to clarify that time requisite would mean the ‘interval between date of application for supply of copy and date when copy is ready for delivery’. This term, however, shall have no nexus with act of litigant in collecting / receiving the same.

5. The perusal of the record shows that copy was applied on 13.3.2018 but cost was estimated on ‘26.3.2018’ i.e. after about ‘13 days’. When the cost was estimate on ‘26.3.2018’ i.e. after 13 days of applying date then it logically cannot be presumed that during such period the copying branch was ever in a position to intimate date of delivery. Thus, such period was required to be excluded within meaning of Section 12(5) supra. Here, it would be relevant to mention that judgment was passed on 08.3.2018 and appeal was filed on 17.4.2018 hence, prima facie, the exceeding period was 09 days and if interval period of 13 days (when cost was assessed) is excluded, the date of presenting appeal was well within period of limitation.

6. Prima facie, the appellate Court has failed to examine the above factual and legal aspects, therefore, act of appellate Court in denying the benefit of Section 12(5) of the Act, cannot be approved. Judgments relied by learned counsel for the respondents i.e. 2019 CLC 321 and 2011 CLC 418 speak that appellant is bound to explain the delay of even one day. There is no exception to such settled principle of law, however, the issue, involved in the matter, is entirely different. Both citations are not helpful for the respondents as documents speak

itself (res ipsa loquitur). Accordingly, appeal before appellate Court was within time, hence, impugned order is set aside; case is remanded back to the appellate Court for decision on merits.

Instant appeal is disposed of alongwith pending applications.

(Y.A.) Appeal disposed of

PLJ 2020 Karachi 93

Present: Salah-ud-Din Panhwar, J.

KHUDA BUX CHANDIO--Applicant

versus

ALTAF BALOCH and others--Respondents

R.A. No. 42 of 2012, decided on 7.11.2019.

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

----S. 11, O. XXIII, R. 3--Compromise decree--Res judicata--Applicability--During pendency of suit, compromise application under Order XXIII Rule 3, CPC was preferred and Defendants No. 48 and 52 signed that application and suit was decreed in terms of compromise--Prima facie, said compromise decree (contract), in any way, is not against defendants--At this juncture, it would be pertinent to mention that resjudicata would apply when parties are same as well as subject matter and lis is decided on merits after framing issues, hence order dated 01.11.1997, whereby suit was decreed, is not falling in above ambit. [Pp. 94 & 95] A & C

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

----Ss. 11 & 115--Suit filed by applicant was dismissed--Res judicata--Decree on basis of compromise—Non-signatory of compromise Application on res judicata on parties--Plaintiff of civil administration of justice--Challenge to--Present applicant is not signatory of that compromise application and decree is in terms of contents of compromise application which, per settled law, shall be binding upon signatories of such document (compromise) only and same shall not operate against others--Resjudicata, decided in favour of defendants, was against principles of civil administration of justice, thus, impugned judgments recorded by both Courts below are hereby set aside and case is remanded back to trial Court to decide issue in question on basis of evidence already brought on record after hearing parties, preferably within one month--Revision was petition disposed of. [P. 95] B & D

2003 CLD 614 ref.

Mr. Afaq Yousuf, Advocate for Applicant.

Mr. Muhammad Ilyas Warraich, Advocate.

Mr. Abdul Shakoor Memon, Advocate for Respondent No. 1.

Date of hearing: 7.11.2019.

Order

By consent application (CMA No. 4585/2019) is allowed.

1. Heard learned counsel for respective parties at length. Apparently, Suit No. 118/2003 filed by the applicant was dismissed. It would be conducive to refer the relevant paragraph of impugned judgment of trial Court, whereby plea of learned counsel for respondents that Suit No. 168/1995 was decreed against the applicant, as well as against other defendants, hence suit filed by present applicant falls within the ambit of resjudicata:

----------------. It is also so an admitted fact that the decree in Civil Suit No. 168/1995 has already been given by the Court of Senior Civil Judge Malir against the plaintiff who were the defendants in the said suit regarding the property in question, but said decree not been challenged by the plaintiff. Plaintiff has also failed to establish that how he is the co-owner or co-share(r) of the agricultural land bearing Survey No. 23, Deh Thano District Malir, Karachi. It is also pertinent to mention here that one Civil Suit No. 168/1995 has been filed against the plaintiff by the Defendant No. 1 & 2, which was decreed by the Court, and the Court has cancelled the documents which were possession with the defendants of Civil Suit No. 168/1995, and present plaintiff was one of the defendant(s) of Civil Suit and said order/judgment not been challenged by the plaintiff in any Court of law and instead to file any appeal he file(d) the present suit for Partition against the defendants.

3. Admittedly, during pendency of suit, compromise application under Order XXIII Rule 3, CPC was preferred and Defendants No. 48 and 52 signed that application and suit was decreed in terms of compromise, that order is reproduced herewith:

Parties and their counsel present. The contents of compromise were read over to them, they admit the same and also verify their signature. In view of above the suit stands disposed of in terms of compromise against defendants 48 and 52 and decreed against the remaining defendants declared, already exparte on 26.7.97, with no order as to costs. Application disposed of accordingly.

4. Admittedly, present applicant is not signatory of that compromise application and decree is in terms of contents of compromise application which, per settled law, shall be binding upon the signatories of such document (compromise) only and same shall not operate against others. Reference may well be made to the case of Muhammad Iqbal v. Khair Din 2014 SCMR 33 wherein it is observed as:

“12 A consent decree is a kind of agreement/contract between two parties with a superadded command of the Court but it would not bind a third party who was not party to the said suit ...”

It may also be added here that such like compromise legally cannot attain status of ‘issue decided’ which, once decided by a competent Court of law, shall be binding upon all to such extent unless the same is get set-aside by third party by resort of legal course.

5. Prima facie, the said compromise decree (contract), in any way, is not against the defendants. At this juncture, it would be pertinent to mention that resjudicata would apply when parties are same as well as subject matter and lis is decided on merits after framing issues, hence order dated 01.11.1997, whereby suit was decreed, is not falling in above ambit. Reliance may well be made to the case reported as Youuf Soap Factory v. Deputy Registrar of Trade Mark & Ors 2003 CLD 614 wherein it is held as:

“8. As regards the argument that principle of res judicata are also applicable to the case in hand, suffice it to say that no conclusive determination of any of the issues between the parties has been made in the earlier litigation. It is only on account of their statements, which at the best, are in the nature of compromise that the matter was disposed of when it has been held that such compromise / agreement was illegal and unenforceable, the principle of res judicata would have no application.

Accordingly, resjudicata, decided in favour of defendants, was against the principles of civil administration of justice, thus, impugned judgments recorded by both Courts below are hereby set aside and the case is remanded back to the trial Court to decide the issue in question on the basis of evidence already brought on record after hearing the parties, preferably within one month.

1. Needless to mention that the trial Court shall not be influenced by the earlier judgment passed by the same Court.

2. Instant Revision Application is disposed of alongwith listed applications in the above terms. Office shall communicate this order to both Courts below alongwith R&Ps.

(Y.A.) Revision petition disposed of

PLJ 2020 Karachi 96

Present: Salahuddin Panhwar, J.

M/s. K-ELECTRIC SUPPLY COMPANY LIMITED and 2 others--Appellants

versus

FAYYAZ AHMED and 2 others--Respondents

IInd Appeal No. D-68 of 2015, decided on 17.10.2019.

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

----S. 100--Suit for damages--Decreed--Appeal--Dismissed--Issuance of wrong bills--Non-payment of illegal gratification--Wrong meter reading--Limitation--Challenge to--Decision normally would not be disturbed in second appeal unless it is shown that decision is contrary to law or some material questions of law, materially effecting decision, were ignored--Issuance of wrong meter reading bills from 1998 to 2006, is not disputed by K.E.S.C, hence, they can’t come with plea that plaintiff/ respondent had not suffered mental agony by acts of their officials--Proofs of suffering and agony cannot be demanded in shape of ‘written documents’ but may well be proved by circumstances--Plaintiff/respondent did establish continuity of wrong actions on part of appellants/ defendants as well his approaches for redressal therefore, in such an eventuality department legally cannot take an exception to prove bona fide of its actions--Burden whereof (proving bona fide) was upon appellant and a failure in that regard would always burden it (appellant) to bear consequences--Perusal of record shows that question regarding limitation was not only framed but was attended--Prima facie, there appears no illegality in impugned judgments and decrees of Courts below--Appeal was dismissed.

[Pp. 101, 103, 104 & 105] A, B, C, D & E

2013 SCMR 1570 and 2016 SCMR 101 ref.

Mr. Ameeruddin, Advocate for Appellants.

In person for Respondents.

Date of hearing: 17.10.2019.

Judgment

Appellant has challenged judgment dated 27th July 2015 passed by II-Additional District Judge Karachi Central in C.A. No. 92/2012 whereby appeal of appellant was dismissed.

1. The facts of the case are that the Respondent No. 1 filed suit for damages on the plea that the appellants/KESC staff issued wrong bills in the months of January and February, 1998 of 55 units for Rs. 69/-, 56 units for Rs. 72/- and 503 units in March; and due to these wrong readings the appellants/defendants received approximately 50 paisa excess per unit on 503 units. Again the appellant /defendants issued an irregular bill of 1295 units for Rs. 3420/- in the month of August 1998. Due to non-payment of illegal gratification, the respondent/plaintiff suffered irreparable loss and the appellants/ defendants tortured the respondent/plaintiff continuously for sending illegal, unlawful and wrong bills. In the month of July, 2000, the respondent/plaintiff approached to the Honourable Wafaqi Mohtasib (Ombudsman). The appellants/defendants redressed the billing of last three months and shown Rs. 420/- stand as credit in the month of September, 2000. Thereafter, the appellants/defendants issued a bill for Rs. 6000/- including previous arrears of Rs. 5040/48 in the month of October, 2000 and another bill “for Rs. 4600/- including previous arrears of Rs. 4062/24 issued in the month of December, 2000. The respondent/plaintiff enquired where from the arrears for Rs. 5040/48 and Rs. 4062/24 are showing though KESC redressed, the respondent/ plaintiff billing and shown Rs. 420/- as credit in the month of September, KESC Ref. No. ZCB/NKZ/2000/708 dated 13/9/2000 but there was no response by the appellants/defendants and they used to divert the attention from the actual facts in very technical way.

2. The learned Ombudsman issued findings with the following remarks:

(i) The agency has failed to justify its action, hence the complainant be charged according to the reading for the dispute period, (ii) The Managing Director of KESC should take disciplinary action for submitting wrong report by the Zonal Controller Billing.

1. The appellants/defendants transferred the amount which was recovered by wrong billing up to December 2000, the arrears disputed account and credited it to the respondent/plaintiff account in the month of January, 2001. After two years, the appellants/ defendants transferred the same amount from disputed arrears to the respondent/plaintiffs account and recovered the same again in the billing month of January, 2003. It is an accounting trick played by the appellants/defendants staff and neither any relief was extended to the plaintiff by the defendants nor his problem was solved by them. In the month of April, 2003, the respondent/plaintiff send a written complaint to the Prime Minister’s Complaint Cell, Islamabad and in reply of such complaint, the appellants/defendants wrote that “after giving due slab benefit your bill has been corrected and only Rs. 310/- are payable by you upto February, 2003 vide KESC ref. No. CM/C8/C-55/2003/272 dated 30/6/2003. The respondent/plaintiff again erred wherefrom the appellants/ defendants are showing Rs. 310/- as outstanding. No proper response was given. The respondent/plaintiff moved a written complaint to the Ministry of Interior. The appellants/ defendants on the complaint to Interior Minister replied “After revision the bills there was only Rs. 310/- outstanding against the consumer/plaintiff upto February, 2003. Moreover, the above named plaintiff/consumer cleared his dues upto November, 2003 vide KESC Ref No. CM/CS/C-55/2004 dated 26/01/2004”. The appellants/ defendants once again issued a bill of only 98 units. The respondent/ plaintiff moved written complaint to the appellants/defendants at Head Office and in response the appellants/defendants issued a second bill of 454 units from meter reading 45927 to 46381 for Rs. 2000/- along with previous arrears of Rs. 485/- on 27/01/2005. Though last 2 bills were issued on the same reading and the bill was bearing some mistakes, which are that:

(a) That the said bill was issued on meter reading 45927 to 46381 while last two bills were also issued on the same reading and the plaintiff was also paid the same amount.

(b) That the previous arrears of Rs. 485/- was wrong and illegal. Alter protest of the plaintiff which was deleted.

(c) That the net amount of current bill of Rs. 1419.66 is wrong. The correct calculation is Rs. 1369.22.

(d) That the GST amount shown i.e. Rs. 205/- and adjusted Rs. 205.44. As per practice the same amount of Rs. 205/- will be adjusted.

(e) During the wrong billing of these several months the plaintiff paid extra meter rent.

(f) That it is pertinent to mention here that it is not an irregular bill, neither Irregular Bill written on the forehead of the bill nor amount of last two bills was adjusted as per practice of KESC defendant staff.

1. The above mistakes were made willfully to harass and torture the respondent/plaintiff and created complication in the case for illegal gratification. Thereafter, the respondent/plaintiff received wrong bill on 27/01/2005 for Rs. 2000/- and he again moved written complaint to Head Office of the appellants/defendants and requested to explain some questions/points. In response of his application, the appellants/defendants issued a bill in the month of March, 2005 having two mistakes and wrote “It is to inform to you that billing was found quite in order up to the billing month of March, 2005” vide KESC Ref. No. ZCB/NKZ/AL 967188/05/06 dated 8/04/2005. Mistakes are as follows:

(i) In the month of March, 2005 arrears CR balance shown Rs. 272.14 though in the last month after adjusting the billing amount CR balance Rs. 776.83 was shown Rs. 504.69 shown less in the current bill.

(ii) An amount of Rs. 760.34 was showing in arrears disputed account till February, 2005 and in the month of March, 2005, it is not shown. Where it has gone.

1. The respondent/plaintiff pleaded that he suffered willful harm and is entitled to damages and compensation to the tune of Rs. 25,00,000/- also the respondent/plaintiff suffered several mental injuries and agony as well as financial losses from 1998 till today at the hands of appellants/defendants KESC staff.

The Respondent No. 1/plaintiff prayed as under:

(a) The defendants are running the plaintiff from post to pillar from the year 1998 under one pretext or the other, therefore, it is respectfully prayed that this Honourable Court may kindly be pleased to declare that the acts and conducts of the defendants are illegal, unlawful and unwarranted.

(b) The acts and conducts of the defendants caused serious mental injuries as well as financial loss to the plaintiff, therefore, the defendants are jointly as well as severally liable to pay the damages of Rs. 25,00,000/-(Rupees Twenty Five lacs only).

(c) Costs of the suits.

(d) Any other/further/better relief(s) which this Honourable Court may deem fit and proper under the circumstances of the case.

1. The appellants/defendants filed written statement wherein they denied all the allegations leveled against them. The respondents/defendants stated that the relief claimed by the respondent/plaintiff for the compensation of Rs. 2.5 Million is time barred and without cause of action. The suit is not maintainable and no cause of action accrued to the respondent/plaintiff for filing this suit. It is stated that the allegation of illegal gratification from the consumers are fictitious, false and fabricated and increment in the rates of units after 300 units did not effect the respondent/plaintiff for the reason that the bills sent by the appellants/defendants on the average basis were always adjusted according to the actual reading of the meter/consumed units and slab benefit was extended during the said adjustment. The bills related to the period of 1998 to 2002 have no relevancy with the present case as the same does not constitute any cause of action in favour of the respondent/plaintiff and against the appellants/defendants being hopelessly time barred. It is further submitted that the Honourable Mohtasib has disposed of the complaint of the respondent/plaintiff with regard to the bills in question. The bills of the respondent/plaintiff upto February, 2003 has been corrected by the appellants/defendants after giving slab benefit and the respondent/plaintiff was informed about the said settlement. The letter dated 8/4/2005 is self-explanatory and the mistakes pointed out by the respondent/plaintiff in the bills in question are based upon misunderstanding regarding the billing system of the appellants/defendants. The respondent/plaintiff is trying to create false and concocted cause of action. The respondent/plaintiff made several complaints to the New Karachi Billing Zone. The appellants/ defendants denied for issuance of illegal bills to the respondent/ plaintiff. The defendants prayed for dismissal of the suit with special cost.

2. In order to prove his case respondent/plaintiff had filed his Affidavit-in-evidence and examined himself at Ex.P. He produced documents as Ex.P/1 to P/50 and he was cross examined by learned counsel for the appellants/defendants. Thereafter, the learned counsel for the respondent/plaintiff closed the side; Iqbal Ahmed Qureshi, the authorized officer of the appellants/defendants examined himself who produced documents as Ex. D/ 1 and D/2 and was cross examined by learned counsel for the respondent/plaintiff and thereafter the learned counsel for the appellants/defendants closed their side. After hearing counsel for the parties, the learned trial Court decreed the suit of the Respondent No. 1/plaintiff to the extent the damages to the tune of Rs. 3,00,000/- hence, appeal filed against that decree was dismissed as aforesaid.

3. Learned counsel for appellants argued that the impugned Judgment suffers from illegality and irregularity and is liable to be set aside; that appellate Court has failed to determine the material issues according to law; the learned trial Court had jointly discussed the Issue No. 1 and 2 in the impugned Judgment but failed to understand the point of limitation; the findings of the learned trial Court on Issue No. 3 are vague; trial Court has illegally and unlawfully awarded damages to the respondent as there was no evidence of any damage and mental torture available on record; that trial Court has allowed the damages to the respondent only on the ground that the respondent has moved so many applications to different authorities which is against the settled principle laid down by the superior Courts; that the learned trial Court has completely ignored the provision of law and material on record and passed the impugned Judgment without applying the judicial mind; that impugned Judgments may be set aside and the appeal filed by the appellants may be allowed in the interest of Justice. Learned counsel has referred the documents at page Nos. 231, 235 and 289 of the file. The learned counsel for the appellants relied upon decisions reported as PLD 1975 SC 295, PLD 2006 Karachi 621, 2007 SCMR 1821, 2008 YLR 206.

4. Respondent No. 1 present in person relied upon the impugned Judgment and contended that the II-appeal filed by the appellant is illegal and improper and is liable to be dismissed and that impugned Judgment passed by the learned trial Court was based on evidence and liable to be upheld.

11. Heard and perused the available record. At the outset, it being material to add that a decision normally would not be disturbed in second appeal unless it is shown that decision is contrary to law or some material questions of law, materially effecting decision, were ignored. Reliance is placed on the case of M/s. Anwar Textile Mills Ltd. v. Pakistan Telecommunication Company Ltd. 2013 SCMR 1570 wherein 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”

1. Perusal of the available record makes it clear that it is undeniable position that plaintiff/respondent had to approach to different authorities for complained illegal action of the appellant/ defendant which included an investigation by Federal Ombudsman wherein it was recommended vide order dated 03.01.2001 as:

“In the light of the aforesaid facts the following action be taken in the matter:-

a) The agency has failed to justify its action, hence the complainant be charged according to the reading for the disputed period.

b) The Managing Director K.E.S.C., should take disciplinary action for submitting wrong report, by the Zonal Controller Billing.

c) The compliance be reported within 30 days.

Further, it also came on record that even after such award the grievance of the plaintiff/respondent did not come to an end rather admittedly wrong billing was continued which may have been corrected on approaches. Such complained wrong actions again resulted in making the respondent / plaintiff to approach same fora i.e. Ombudsman. Here relevant portion of judgment of appellate Court, being relevant is referred, which reads as:

“The respondent/plaintiff has clearly mentioned in his plaint that he was continuously suffering from the behaviour of KESC since January, 1998 till April, 2006. The KESC was continuously issuing the wrong bill to the respondent /plaintiff and the respondent/ plaintiff was trying to correct the said wrong bills but KESC employees/staffs were not hearing the respondent/plaintiff.”

For such unjustified actions it would suffice to refer the case of Province of Sindh v. Kabir Bokhari 2016 SCMR 101 wherein it is observed as:

“10. ... The Government and its department are bound to act justly and fairly with the citizens of the country and in case of illegal and unlawful conduct of the government and its officials of department any loss is caused to the citizen of this country, same is appropriately be compensated. This is a fundamental rule and also principle of equity.”

Such right of being compensated legally cannot be obtained without resort to available legal remedies, therefore, plea of the appellant/defendant carries no weight that plaintiff / respondent had no cause of action. Further, at this point it would also be relevant to mention relevant portion of judgment of appellate Court which reads as:

‘... One and most important reply of the respondent/ plaintiff in this cross examination is that he admitted on the question of advocate for the appellants/defendants that “it is correct, to suggest that I had suffered from mental torture and losses due to the electricity bills”. This admission is sufficient for decreeing the present suit because the advocate for the appellants/defendants had himself got admitted reply from the mouth of the respondent/plaintiff.”

13. Besides, issuance of wrong meter reading bills from 1998 to 2006, is not disputed by the K.E.S.C, hence, they can’t come with the plea that plaintiff/ respondent had not suffered mental agony by the acts of their officials.

14. It may well be added here that proofs of the suffering and agony cannot be demanded in shape of ‘written documents’ but may well be proved by circumstances. The plaintiff/respondent did establish the continuity of wrong actions on the part of the appellants/ defendants as well his approaches for redressal therefore, in such an eventuality the department legally cannot take an exception to prove bona fide of its actions. The burden whereof (proving bona fide) was upon appellant and a failure in that regard would always burden it (appellant) to bear consequences. The failure thereof would burden them to compensate the aggrieved. At this point, a referral to case of Malik Gul Muhammad Awan v. Federation of Pakistan 2013 SCMR 507 wherein it is detailed as:

“3 So far as the conduct of respondent-officials with reference to the incident in question is concerned, the same was found to be untenable and there are concurrent findings that those functionaries had taken the law in their hands with motives other than bona fides. However, awarding of damages is discretionary and the said discretion has to be exercised in the light of the evidence led qua the extent of damages suffered by a party. Petitioner claimed damages to the tune of Rs. 81.82 Million but it has concurrently been found that petitioner failed to substantiate the claim to the said extent by cogent evidence. In the circumstances , a duty is cast on the Court. In Sufi Muhammad Ishaque v. The Metropolitan Corporation, Lahore through Mayor (PLD 1996 SC 737), it was held as under:

“Once it is determined that a person who suffers mental shock and injury is entitled to compensation on the principles stated above, the difficult question arises what should be the amount of damages for such loss caused by wrongful act of a party. There can be no yardstick or definite principle for assessing damages in such cases. The damages are meant to compensate a party who suffers an injury. It may be bodily injury loss of reputation, business and also mental shock and suffering. So far nervous shock is concerned, it depends upon the evidence produced to prove the nature, extent and magnitude of such suffering, but even on that basis usually it becomes difficult to assess a fair compensation and in those circumstances it is the discretion of the Judge who may, on facts of the case and considering how far society would deem it to be a fair sum, determine the damage. The conscience of the Court should be satisfied that the damages awarded would, if not completely, satisfactorily compensate the aggrieved party.”

The question of awarding quantum was also attended by the learned trial Court as against claimed damages of Rs. 25,00,000/- an amount of Rs. 300,000/- has been awarded.

15. Further, as regard question of limitation, the perusal of the record shows that question regarding limitation was not only framed but was attended. Relevant portion of judgment of appellate Court on such point reads as:

“From the perusal of evidence, it also appears that the respondent/plaintiff was facing hardship by the hands of the appellants/defendants since 1998 to 2006 on account of wrong billings. The advocate for the appellants/defendants argued that the suit is not maintainable and time barred but he has not mentioned or relied any relevant section of law to prove that under what provision of the law, the suit is not maintainable and time barred?

The advocate for the respondent/plaintiff has relied upon the Article 22 and 28 of the Limitation Act which is showing that the time period for filing a suit is one year. It is further mentioned in the Article 22 that the date of limitation will be started when the injury is committed and the date of the distress. The advocate for the respondent/plaintiff also argued that the respondent/plaintiff is continuously visiting the office of the authority of KESC and he was also filing applications to the other authorities for redressal of his grievance but all in vain, therefore, his time period will be started from the year 2006 when the respondent/plaintiff become dishearten and hopeless from all the forums then he filed this suit before the trial Court, therefore, the suit of the respondent/plaintiff is maintainable and not time barred.”

16. Prima facie, there appears no illegality in the impugned judgments and decrees of the Courts below. The absence thereof would always be sufficient for dismissal of second appeal, hence by short order dated 17.10.2019 instant second appeal was dismissed, these are the reasons for that order.

(Y.A.) Appeal dismissed

PLJ 2020 Karachi 105

Present: Salahuddin Panhwar, J.

MUHAMMAD BASHIR--Applicant

versus

Mst. SAKINA and others--Respondents

C.R. Appln. No. 149 of 2017, decided on 3.12.2019.

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

----S. 115 & O.XXI R. 99--Property dispute--Concurrent findings--Challenge to--Principle of ut lite pendente nihil innovetur--No party can alienate or otherwise deal with an immovable property to detriment of his opponent--Doctrine by now is recognized both in law and equity and underpins rationale that no action or suit would succeed if alienations made during pendency of proceedings in suit or action were allowed to prevail--Plea of bona fide purchaser is of no legal consequence if transferor’s title loses its root in a pending litigation--Since, prima facie, respondent failed to challenge same and whereas applicant is claiming ownership applicant who had lost his case and that order has attained finality, hence applicant legally cannot agitate same plea in his independent right because he, in fact, does not have an independent right but his rights, if any, are derived from hence he was always to sail or sink with such transferor--Revision was dismissed. [Pp. 106 & 111] A & B

PLD 2011 SC 905.

Mr. Raghib Ibrahim Junejo, Advocate for Applicant.

Mr. R.F. Virjee, Advocate for Respondent No. 1.

Date of hearing: 3.12.2019.

Order

Heard learned counsel for respective parties at length.

1. Learned counsel has mainly emphasis that Petitioner purchased Plot No. 35 from one Muhammad Iqbal and residing in that premises, whereas case of the Respondent No. 1 pertains to Plot No. 156, having no nexus.

2. In contra, learned counsel for Respondent No. 1 inter alia contends that property is same, however, Muhammad Iqbal and present Applicant have tried to confuse the trial Court thereby attempted to defeat the proceedings He further contends that in Civil Appeal No. 136 of 2009, learned V-Additional District & Sessions Judge, Karachi South has categorically replied with regard lo number of plots as agitated by Muhammad Iqbal.

4. The core issue relates to principle of ut lite pendente nihil innovetur (pending litigation nothing new should be introduced) which stipulates that pendent elite parties to litigation no party can alienate or otherwise deal with an immovable property to the detriment of his opponent. The doctrine by now is recognized both in law and equity and underpins the rationale that no action or suit would succeed if alienations made during pendency of proceedings in the said suit or action were allowed to prevail. It also needs to be added that even the plea of bona fide purchaser is of no legal consequence if the transferor’s title loses its root in a pending litigation. Reference is made to the case of Muhammad Ashraf Butt & others v. Muhammad Asif Bhatti & others PLD 2011 SC 905 wherein it is categorically held at page-913 as:

“… The effect of such alienation would be that the plaintiff would be defeated by defendant alienating the suit property before the judgment or decree and the former would be obliged to initiate de novo proceedings and that too with lurking fear that he could again be defeated by the same trick. The doctrine of lis pendens in pith and substance is not only based on equity but also at good conscience and justice. The rule unambiguously prescribes that the rights of the party to the suit, who ultimately succeed in the matter, are not affected in any manner whatsoever on account of the alienation, and, the transferee of the property shall acquire the title to the property subject to the final outcome of the lis. Thus, the transferee of the suit property, even the purchaser for value; without notice of the pendency of suit, who in the ordinary judicial parlance is known as a bona fide purchasers in view of the rule/doctrine of lis pendens shall be bound by the result of the suit strictosensu in all respects, as his transferor would be bound. The transferee therefore does not acquire any legal title free from the clog of his unsuccessful transferor, in whose shoes he steps in for all intents and purposes and has to swim and sink with his predecessor in interest.

1. To see whether the applicant has an exception to above principle, it would be conducive to refer Paragraphs No. 9, 10, 11 and 12 of the impugned order, which are that:

“9. I have heard learned counsels for the parties at length, perused the impugned order so also the record. On appraisal of record, it reveals that Civil Suit No. 1044/1998, filed by the Respondent No. 3 against the Respondent No. 1 for possession, declaration and permanent injunction, claiming to be owner of House No. 156, situated in Gali No. 20, Neelam Colony, Karachi having acquired/purchased the same from one Muhammad Siddique. As per Respondent No. 3, the Respondent No. 1 was his wife, whom he divorced but did not ask to vacate the said house but on coming to know that she intends to sell out the same, filed the above Suit, which was decreed in favour of the former by the learned XV-Civil Judge, Karachi South vide Judgment dated 27.01.1999. In pursuance to said decree, the Respondent No. 3 got the possession of the said property in Execution proceedings Bearing No. 01/1999.

1. Later on, the Respondent No. 1 Mst. Sakina had filed an application under Section 12(2), CPC for setting aside of said exparte Judgment & Decree, but the same was dismissed vide order dated 17.5.2005 by Vth Civil Judge, Karachi South. Such order was assailed by the Respondent No. 1 Mst. Sakina in Civil Appeal No. 95/2005, and the learned VIth Additional District Judge, Karachi South, vide Judgment dated 31.5.2006 allowed the said appeal and exparte Judgment & Decree passed in Civil Suit No. 1044/1998 was set aside, remanding the matter back to the learned trial Court for decision on merits. Record further indicates that after remand of the matter, the Respondent No. 1/defendant had filed written statement, issues were settled by the trial Court, however, subsequently on failure of the Respondent No. 3/plaintiff to make appearance, the. said suit was dismissed for non prosecution on 15.11.2008. After dismissal of the Suit, the Respondent No. 1 Mst. Sakina had Wed an application under Section 144, CPC read with Section 151, CPC in suit No. 1044/1998 for restoration of possession of the subject property acquired by the Respondent No. 3 on the basis of ex-parte judgment/decree, such application was dismissed at the first instance by the learned XII Civil Judge, Karachi South, vide order dated 04.7.2009, the said order was assailed by her through Civil Appeal No. 136/2009, which was allowed by the learned Vth Addl. District Judge, Karachi South vide order dated 13.10.2010, with the observation that since the very base of possession of subject property by the Respondent No. 3 is no more in field, therefore, the Respondent No. 1/Judgment Debtor is entitled for taking back the possession and her application under Section 144, CPC read with Section 151, CPC was allowed. Thereafter, the said order passed in Civil Appeal No. 136/2009 by learned V Additional District Judge, Karachi South, was challenged by the Respondent No. 2, by filing application u/S. 12 (2) read with Section 151, CPC and the same was dismissed by the learned Vth Addl: Sessions Judge, Karachi South vide order dated 01.12.2015.

2. Under the above state of affairs, it is quite clearly appears that the Possession of the subject property was taken by the Respondent No. 3 from Respondent No. 1 in pursuance to ex-parte decree passed in his favour, which was later on set aside, therefore, the Respondent No. 1 has rightly invoked the provision of Section 144, CPC for restoration of possession of the subject property, which was duly allowed by the competent Court of law. So far as the claim of the appellant as raised in his application under Order XXI Rule 99, CPC, is concerned, he claims to have purchased house bearing Sheet No. 2, Katchi Abadi, Shah Rasool Colony-2, Clifton Karachi and stated that the possession of his said house which is claiming under the writ is different, but the Respondent No. 1 under the grab of decree fraudulently wants to get the same. The learned trial Court while deciding the said application observed as under:

Record shows that as per order dated 30 11.2010 passed on execution application by this Hon’ble Court reveals that in execution of ex-parte judgment and decree dated 27.01.1999 possession was taken over by the Decree Holder but the same could not sustain and was set aside in Civil Appeal No. 95/2005 by the Hon’ble VI Additional District Judge, Karachi vide judgment dated 31.05.2006 remanding the case for deciding the matter on merit within six months and following such directions the matter was proceeded and ultimately suit was dismissed on 15.11.2008 for non-prosecution. Record further reveals that thereafter an application u/S. 144 read with Section 151, CPC was moved by the Judgment Debtor for having the possession of the suit properly back but that application was dismissed vide order dated 04.07.2009 by the learned XII Judicial Magistrate, Karachi but this order could not sustain and has been set aside in Civil Appeal No. 136/2010 filed before V Additional District Judge Karachi South vide judgment dated 13.10.2010 with the observation that since the basis of delivery of possession of suit property by the decree holder is no more in field, therefore the Judgment Debtor is legally entitled to have the possession of the suit property back and further allowing this application moved by Judgment Debtor u/S. 144. Record further shows that when the appeal was dismissed on 01st December, 2015, the dismissal order was not challenged in the Hon’ble High Court and by lapse of time it became final and during pendency and having purchased the said property on 10th August, 2015 fell within the ambit lis pendens when the order was passing by the Hon’ble V Additional District Judge, Karachi South, I would like to refer the case law:-

1989 SCMR 1781 O.XXXl R. 58 .... Objection to the execution of decree rejected by Courts below on the principle of lis pendens ... petitioners’ claim on the facts that they were purchaser pendent lite, had rightly been rejected on principle of lis pendens--Objection petition on others grounds was not competent--leave to appeal refused.

PLJ 1984 Lahore 326--O XXI Rs. 99, 100 & 101--Object ... Petition ... Competency of--Held: objection petition, if mala fide to be dismissed on that short ground (alone) without holding any inquiry into question of objection occupying premises on his account and not on account of judgment debtor--executing Court finding claim of petitioner mala fide regarding occupation of disputed property in his own right--Held: Court to be competent to non-suit petitioner (even without investigation his claim.

1988 CLC 1652 ( Karachi)--S. XXI, Rr. 99, 101 & 102--Transfer of property Act (IV of 1882), Section 52--Doctrine of lispendens--applicability of--person who had been transferred property by judgment debtor after institution of suit, in which a decree had been pass against such judgment--debtor, held could not take advantage of Rr. 99 & 101 of Order XXI CPC.”

1. Perusal of findings of the learned trial Court referred above, it is revealed that learned trial Court while deciding the application of the appellant after considering each and every aspects of the case and in view of the state of affairs discussed supra, it is quite clear on record that the Respondent No. 1 was out of possession on the basis of exparte Judgment & decree, which was subsequently set aside and as such lawfully invoked the provision of Section 144, CPC for restoration of possession of the subject property, allowed by the competent Court. It is noted that the appellant during the proceeding alleged purchased the suit property, which rightly held by the learned trial Court being transaction based on mala fide and did not give any lawful right to the appellant to put hindrance for retaining back possession of the subject property as allowed by the competent Court of law. I have much respect for the case law relied upon by the learned counsel on behalf of the appellant, but the same are not applicable in the instant matter having variant facts to each other.

2. Record further shows that admittedly Muhammad Iqbal filed application under Section 12(2), CPC, that was dismissed by judgment dated 01.12.2015 while responding to the plea of property, being different. Relevant paragraph of that judgment is that:

“In view of the above facts and circumstances, it is quite clear that change in number of the house from 156 to 308 has not intact changed the suit property but because of renumbering of the plots being Katchi Abadi. It is rather the same property on which decree was passed in ex-parte in the year 1999 and execution was allowed whereby plaintiff/decree holder was put

inpossession. It is the same property on which the applicant/Muhammad Iqbal claims to be bona fide purchaser deriving title through sale agreement from the plaintiff/decree holder Khushi Muhammad. Thus it is the same property for which application under Section 144, CPC was filed as the judgment and decree were set aside and the plaintiff’s suit has been dismissed in non-prosecution.”

7. Since, prima facie, Muhammad Iqbal failed to challenge the same and whereas Muhammad Bashir is claiming ownership through very Muhammad Iqbal, who had lost his case and that order has attained finality, hence Muhammad Bashir legally cannot agitate same plea in his independent right because he, in fact, does not have an independent right but his rights, if any, are derived from Muhammad Iqbal hence he was always to sail or sink with such transferor. Accordingly, instant revision application is hereby dismissed alongwith listed application.

(M.M.R.) Petition dismissed

PLJ 2020 Karachi 111 (DB)

Present: Muhammad Iqbal Kalhoro and Irshad Ali Shah, JJ.

IRFAN AHMED etc.--Petitioners

versus

FEDERATION/GOVERNMENT OF PAKISTAN through Prosecutor General/Chairman National Accountability Bureau, Islamabad etc.--Respondents

C.P. No. D-6470 of 2018, D-8399, D-8437, D-8438, D-8439, D-8490 of 2019 and D-127 & D-349 of 2020, decided on 31.1.2020.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Grant of bail--Reservation of amenity plots for development--Non-allotment policy of plots for residential or commercial proposes--Misused of authority--Allotment of plots by KDA officials through fake allotments--Saling of plots--Non awareness of scheme--Incomplete evidence--Rule of consistency--Since then no substantial progress has been made in trial; situation is still same, there is only incomplete evidence of P.W. Javed Ahmed-on record--Case of petitioners is on same footings, they have already remained in jail for about 02 years and allegations against them are more or less same leveled against co-accused already granted bail--Case of petitioner does not fall Within category or hardship as he was arrested only on 27.11.2018 but in category circumstances when star witness of NAB i.e. P.W. Javed Ahmed Baloch himself is in custody with NAB Rawalpindi, and there is no chance of his appearance before trial Court in near future plus as we are extending relief of bail to all co-accused on rule of consistency, we see no reason to deny same relief to present petitioner--Petitions were allowed. [P. 115] A

M/s. Shabana Ishaque and Sathi Muhammad Ishaque Advocates for Petitioner (in C.P. No. D-6470 of 2018).

Mr. Muhammad Akram Jawed, Special Prosecutor for Respondent (in C.P. No. D-6470 of 2018).

Mr. Muhammad Nizar Tanoli, Advocate for Petitioner (in C.P. No. D-8399 of 2019).

Mr. Muhammad Akram Jawed, Special Prosecutor for Respondent (in C.P. No. D-8399 of 2019).

Mr. Muhammad Farooque, Advocate for Petitioner (in C.P. No. D-8437 of 2019).

Mr. Muhammad Akram Jawed, Special Prosecutor for Respondent (in C.P. No. D-8437 of 2019).

Mr. Muhammad Farooque, Advocate for Petitioner (in C.P. No. D-8438 of 2019).

Mr. Muhammad Akram Jawed, Special Prosecutor for Respondent (in C.P. No. D-8438 of 2019).

Mr. Muhammad Farooque, Advocate for Petitioner (in C.P. No. D-8439 of 2019).

Mr. Muhammad Akram Jawed, Special Prosecutor for Respondent (in C.P. No. D-8439 of 2019).

Mr. Dildar Khan Jehangiri, Advocate for Petitioner (in C.P. No. D-8490 of 2019).

Mr. Muhammad Akram Jawed, Special Prosecutor for Respondent (in C.P. No. D-8490 of 2019).

Mr. Khaleeq Ahmed, Advocate for Petitioner (in C.P. No. D-127 of 2020).

Mr. Muhammad Akram Jawed, Special Prosecutor for Respondent (in C.P. No. D-127 of 2020).

Mr. Azmat Tufail,Advocate for Petitioner (in C.P. No. D-349 of 2020).

Mr. Muhammad Akram Jawed, Special Prosecutor for Respondent (in C.P. No. D-349 of 2020).

Date of hearing: 31.1.2020.

Order

Muhammad Iqbal Kalhoro, J.--This order shall dispose of above captioned petitions filed by the petitioners for post arrest bail in Reference No. 14/2017 (St. Vs. Muhammad Nasir & others) pending before Accountability Court, at Karachi. Most of the petitions have been filed second time for same relief. Petitioner Muhammad Arif Khan’s (C.P. No. D-349/2020) is however, first petition for post arrest bail. In all the petitions common grounds of hardship and rule of consistency have been taken. It is stated that petitioners have remained in jail for more than two years and still evidence of only one witness partially has been recorded; and that co-accused namely Syed Atif Hussain Naqvi, Muhammad Feroz, Faheemuddin and Sarfraz Ahmed have been granted bail by this Court vide order dated 09.12.2019, whose case is on same footings to that of present petitioners, as, such they are also entitled to same relief.

1. Briefly case of the prosecution is that Karachi Development Authority (KDA) was tasked with development within the Karachi City and in that connection KDA had reserved a number of amenity plots in KDA Scheme No. 36, Karachi, which could not be allotted, exchanged and/or transferred for residential and/or commercial purposes. However, the officers/officials of KDA, nominated in the Reference, with conscious knowledge misused their authority and indulged in allotting, transferring 23 amenity plots in Gulistan-e-Jauhar, KDA Scheme No. 36, Karachi, by creating 296 residential plots (china cutting) illegally and un-authorizedly for pecuniary benefits/illegal gains. The co-accused/beneficiaries in connivance with such officials received the said plots through fake allotments, challans and then sold out the same to the purchasers, who were completely unaware of the scam, thereby earned huge profits for themselves and caused heavy losses to the Government exchequer.

2. We have heard learned counsel for the parties and perused the record with their assistance. Learned Special Prosecutor NAB alongwith I.O. of the case has opposed these petitions. While deciding the petitions of co-accuse.’ filed for same relief, we have observed in the order dated 09.12.2019, as under:

“To ascertain as to whether the delay in the trial has been caused or occasioned by the petitioners or the prosecution, we have carefully perused the diary sheets annexed with the petitions and the report submitted by the learned trial Court as to the progress of the case. A bare perusal of the record reflects that the Reference was filed on 28.04.2017 and the petitioners were arrested on 23.12.2017, and are, thus, behind the bars for a period of more than 23 months. It is also to be noted that the directions given by this Court as well as the Honourable Supreme Court for completion of trial have not been complied with by the trial Court. As per case diaries the charge was framed on 07.12.2017 and out of 23 witnesses only one P.W. Jameel Ahmed Baloch has been partly examined on 07.04.2018 and 08.05.2017 and since then his cross-examination is reserved for want of his appearance before the trial Court. The diary sheet dated 11.06.2019 shows that the said P.W was arrested by NAB Rawalpindi in the fake account case and was remanded to judicial custody on 16.05.2019. The record does not reflect as to whether any serious effort was made either by the prosecution or the learned trial Court for causing production of P.W. Jameel Ahmed Baloch for the purpose of cross-examination or in his absence procuring attendance of other witnesses. The petitioners are behind the bar since 23.12.2017 and despite directions of this Court as well as Hon’ble Supreme Court, the learned trial Court has failed to complete the trial within specified time. During hearing we asked learned Special Prosecutor NAB therein what period, the said witness could be produced by NAB in the trial Court for recording of his further evidence, he could not give any timeline for this purpose, which would essentially mean that the trial has been virtually struck up and there is no likelihood of any progress in it in near future. Hence in view of this background of the matter, the delay is not caused or occasioned due to any inaction or impediment and/or any deliberate attempt on the part of the petitioners or their counsel. As noted above out of 23 witnesses, only one P.W has been partly examined so far. Naturally, it would take considerable time for recording evidence of remaining witnesses and keeping in view the present speed, velocity and pace of trial, there is no likelihood of the trial being concluded in near future. Object of trial is to make an accused to face the trial and not to punish an under trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bars. Accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any shocking, unreasonable and inordinate delay.”

4. Since then no substantial progress has been made in the trial; the situation is still the same, there is only incomplete evidence of P.W. Javed Ahmed-on record. The case of the petitioners is on same footings, they have already remained in jail for about 02 years and allegations against them are more or less the same leveled against the co-accused already granted bail. However, case of petitioner Muhammad Arif does not fall Within category of hardship as he was arrested only on 27.11.2018 but in the peculiar circumstances when the star witness of NAB i.e. P.W. Javed Ahmed Baloch himself is in custody with NAB Rawalpindi, and there is no chance of his appearance before the trial Court in near future plus as we are extending relief of bail to all the co-accused on the rule of consistency, we see no reason to deny the same relief to the present petitioner Muhammad Arif.

1. In view of above, these petitions are allowed. The petitioners are admitted to bail subject to furnishing a solvent surety in the sum of Rs. 10,00,000/- each and P.R bond in the like amount to the satisfaction of Nazir of this Court. Learned trial Court is, however, directed to expedite the trial and conclude the same within a reasonable time by taking coercive steps to procure attendance of the witnesses.

(Y.A.) Petitions allowed

PLJ 2020 Karachi 115

Present: Nazar Akbar, J.

JAWAID MASAUD AHMED KHAN, AL-YAQEEN EDUCATION SYSTEMS (ELEMENTARY SCHOOL)--Applicant

versus

Mst. TALAT SYEDA--Respondent

C.R. Appln. No. 52 of 2018, decided on 24.1.2020.

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

----S. 115--Suit for declaration--Suit for recoveries of salaries, dues, and damages—Dismissed--Appeal--Contractual employee--Issuance of show-cause notice--Allegation of misconduct--Termination of service--Question of--Whether appellate Courts findings of damages to extent of Rs. 35,00,000/- for mental torture to respondent was in accordance with law, evidence or not--Determination--It may be noted here that through impugned order findings of trial Court whereby that Respondent’s claim of recovery of future 74 months’ salary has been set aside by Appellate Court but Respondent has not challenged said finding of appellate Court against her--Counsel for Respondent in response to query from Court that when Respondent has not preferred an appeal against denial of her claim of damages, how it is possible to reverse such findings of trial Court--He contended that once an appeal has been filed by anybody entire judgment comes before Appellate Court and Appellate Court has ample power to pass any order even in favour of party who has not filed any appeal or cross-objection--Case law relied upon by counsel is not relevant in facts of case of Respondent--Case of respondent by any stretch of imagination was not a case-of “grave hardship”--It was also neither case of omission of respondent to file an appeal or cross-objection since there was hardly, any evidence to rely on as proof of damages sustained by respondent--Claim of respondent in hand is a claim of damages of mental torture and she has not produced any evidence to claim mental torture to extent of Rs. 35,00,000/- as was rightly observed by trial Court--Counsel for respondent has only relied on powers of appellate Court to pass such order but he has not referred to any evidence for grant of such decree even by appellate Court--Civil revision was allowed.

[Pp. 118, 119 & 120] A, B, C & D

Mr. Naveed Ahmed Khan, Advocate for Applicant.

Mr. Hamid Idrees, Advocate for Respondent.

Date of hearing: 15.1.2020.

Judgment

This Revision Application is directed against the Judgment dated 14.03.2018 passed by the VIII-Additional District Judge, East Karachi in Civil Appeal No. 200/2017 filed by the applicant, whereby the judgment dated 18.07.2017 passed by VII- Senior Civil Judge, East Karachi the decree of trial Court has been substituted with a decree of Rs. 35,00,000/- as damages in the suit filed by the Respondent.

1. To be very precise, the facts of the case are that the Respondent on termination of her service has filed civil suit against the appellant stating therein that she has joined Al-Yaqeen Education System (the applicant) as a Senior Assistant Directress with effect from 02.08.2007 as per terms and conditions in appointment letter dated 09.08.2007. It was further averred that due to financial crisis, Al-Yaqeen Education System was handed over to the applicant by previous administration along with all fixtures, fittings and staff. She further averred that all of a sudden her services were terminated by the applicant without any hearing or show-cause notice vide termination letter dated 25.06.2012. In response to her termination letter she wrote a letter to the applicant for her reinstatement but the same was replied in negative. Then she served a legal notice upon the applicant which was replied in negative. Therefore, the Respondent had filed the said suit for recoveries of salaries, dues and damages before the trial Court. The Respondent while seeking declaration that her termination was illegal she claimed 74 months’ salaries, two months unpaid salary, and damages and liquidated damages in aggregate amounting to Rs. 49,96,000/-, on the ground that had she not been illegally terminated, she would have worked upto 64 years or her age of retirement from the applicant.

2. The Respondent, after service of notice, filed written statement wherein the contents of the plaint were denied. The Respondent averred that she was purely a contractual employee and she was terminated on misconduct for which she was issued show cause-notice but she failed to reply the same, therefore, she was terminated from service.

3. The trial Court from pleadings of the parties has framed as many as seven issues and after recording evidence and hearing the parties, partly decreed and partly dismissed the suit of the Respondent by judgment dated 18.07.2017. The trial Court held that the Respondent is entitled to recover salaries of future 74 months and 02 months unpaid salaries, however, her claim of damages was dismissed. In an appeal filed by the applicant/defendant against the said judgment, the appellate Court by judgment dated 14.03.2018 set aside the award of 74 months future salaries to the age of 64 years for the unperformed service and upheld payment of unpaid 02 months salaries for May and June, 2012. The appellate Court also set aside finding of trial Court on the issue of damages for mental torture and awarded an amount of Rs. 35,00,000/- as damages claimed by her. The applicant has preferred instant Revision Application against the appellate judgment only to the extent of ground of damages.

4. I have heard learned counsel for the parties and perused the record.

5. Learned counsel for the applicant has contended that applicant is aggrieved by the judgment of appellate Court only to the extent of award of Rs. 35,00,000/- as damages for mental torture to the Respondent, who has served with the applicant for hardly 5 years from 2007 to 2012 and at the time of her removal from the vendee her salary was only Rs. 17,000/- per month. He has stated at the bar that two months’ salary for unpaid period during her service has already been paid by the applicant. His contention was that neither the Respondent has led any evidence to justify damages of general nature amounting to Rs. 35,00,000/- nor the Appellate Court has given any cogent reason for payment of damages on the ground of mental torture to the Respondent. He further contended that the trial Court has specifically denied the claim of damages on the ground that no evidence was produced by the Respondent to justify the same. The Respondent has not even preferred any appeal against the denial of her claim of damages.

7. It may be noted here that through the impugned order the findings of trial Court whereby that Respondent’s claim of recovery of future 74 months’ salary has been set aside by the Appellate Court but the Respondent has not challenged the said finding of the appellate Court against her. In the facts and circumstances, the only question before this Court in Revision is whether the Appellate Court’s findings of damages to the extent of Rs. 35,00,000/- for mental torture to the Respondent was in accordance with law, evidence or not. The learned counsel for the Respondent in response to the query from the Court that when Respondent has not preferred an appeal against the denial of her claim of damages, how it is possible to reverse such findings of the trial Court. He contended that once an appeal has been filed by anybody the entire judgment comes before the Appellate Court and the Appellate Court has ample power to pass any order even in favour of the party who has not filed any appeal or cross-objection. The 2nd question put to the learned counsel was that the decree of Appellate Court for an amount of Rs. 35,00,000/- was without payment of Court fee payable on appeal. The Appellate Court has not even asked the Respondent to pay the Court fee. He replied that Court fee has already been paid by the Respondent in the trial Court alongwith plaint. In support of his contention that Appellate Court can pass order including the claim denied by trial Court but not challenged before the appellate Court by the aggrieved party. He has relied on the case of Province of Punjab through Collector Bahawalpur, District, Bahawalpur and others vs. Col. Abdul Majeed and others (1997 SCMR 1692). In this case the Hon’ble Supreme Court has discussed powers of the appellate in para-8 on which counsel for the respondent has relied. It is reproduced below:-

1. From the preceding discussion, it follows that the, power conferred on the Appellate Court under Order 41, rule 33, C.P.C. is of the widest amplitude and in exercise of this power the Appellate Court is competent to grant relief to a party, notwithstanding the fact that such party failed to prefer an appeal or submit any cross objection. However, in granting relief in such cases the appellate Court will be guided by principles of equity, justice and good conscience and the fact that withholding of relief would result in a contradictory, unworkable or impossible order/decree. Therefore, when the Appellate Court reaches a conclusion in a case that by withholding the relief to a non-appealing respondent or to a respondent who omitted to file cross-objection grave hardship or injustice is likely to result to it or that the judgment or orders will be rendered contradictory, it will be a good ground for exercise of power under Order 41, Rule 33, C.P.C. to grant appropriate relief to a non-appealing respondent or to a respondent who omitted to file cross-objection in the appeal. In the case before us, the learned Judges of the High Court having reached the conclusion that the price of land acquired should have been assessed at Rs. 4,666 per Marla, were of the opinion that in the circumstances of the case it would be unfair if the benefit of such assessment of market value of the land is not extended to those land owners also who failed to file the appeals or cross-objections. Although it was’ not so expressly stated in the impugned judgment by the learned Judges but from the trend of reasoning, it is clear to us that the learned Judges were of the view that it would lead to contradiction in terms, if some of the landowners in the same vicinity are awarded compensation at higher rate while others are paid at a much lower rate of assessment. The learned Judges, therefore, took the view that the case was fit for exercise of power by them under Order 41, Rule 33, C.P.C. by awarding compensation at a uniform rate even to those respondents who had either omitted, to file the appeals against the judgment of referee Court or had failed to prefer cross-objections in the appeals filed by the appellants. The above approach by the learned Judges for exercise of their jurisdiction under Order 41, Rule 33, C.P.C. cannot be treated as unjustified or irrelevant so as to call for interference by this Court. We, therefore, find no force in the contention of the learned counsel, for the appellants that the High Court had no jurisdiction to extend the benefit of higher assessment of compensation for acquired land to land owners/respondents who had failed to file appeals or cross-objections in the appeals filed by the appellants.

8. I am afraid the case law relied upon by the learned counsel is not relevant in the facts of the case of the Respondent. The case of respondent by any stretch of imagination was not a case-of “grave hardship”. It was also neither the case of omission of the respondent to file an appeal or cross-objection since there was hardly any evidence to

rely on as proof of damages sustained by the respondent. The cited judgment was on the question of compensation of the value of the land to the Respondent acquired by the State, who have not filed an appeal or omitted to file cross-objection. The claim of the respondent in hand is a claim of damages of mental torture and she has not produced any evidence to claim mental torture to the extent of Rs. 35,00,000/- as was rightly observed by the trial Court. Learned counsel for the respondent has only relied on the powers of appellate Court to pass such order but he has not referred to any evidence for grant of such decree even by the appellate Court.

1. In view of the above, this Civil Revision is allowed and the award of damages by the Appellate Court to the Respondent is set aside as not sustainable on the facts on record.

(Y.A.) Civil revision allowed

PLJ 2020 Karachi 120

Present: Salahuddin Panhwar, J.

AJAB KHAN--Applicant

versus

Mirza QAYYUM BAIG and 8 others--Respondents

R.A. No. 68 of 2016, heard on 21.1.2020.

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

----Ss. 12(2) & 115--Suit for specific performance--Decreed--Filling of application u/S. 12(2) of CPC--Allowed--Plaintiffs were directed to join applicant and suit was proceed a fresh while respondents filed suit which was decreed--Appeal--Dismissed--Ownership of property--Sale agreement--Scope of revisional jurisdictional--Challenge to--Scope of Revisional jurisdiction of this Court is limited one, therefore, unless it is shown that findings of two Courts below are not, prima facie, illegal and perverse same would not be disturbed--Perusal of record shows that all issues were adjudicated and addressed by trial Court through a splendid judgment and there is admission on part of applicant that he failed to examine marginal witnesses as well as he failed to submit any proof of payment of sale consideration and proof of possession as well construction--I found judgment to be in accordance with law; this is not a case of mis-reading and non-reading of evidence--Revision application was dismissed. [Pp. 121, 122 & 123] A, B & C

2010 SCMR 5 ref.

Mr. Sathi M. Ishaque, Advocate for Applicant and Mr. Samir-ur-Rehman Khan, Advocate.

Ms. Sultana Parveen, Advocate for all Respondents except Respondent No. 8 & 9.

Date of hearing: 21.1.2020.

Order

Through this Revision Application, the applicant has assailed the judgment and decree dated 30.03.2016 passed by learned IV-Additional District Judge, Karachi Central in Civil Appeal No. 16/2012, whereby the judgment and decree dated 23.12.2011 passed by learned 1st Senior Civil Judge, Karachi Central in Suit No. 458/2003 were upheld and consequently, the appeal was dismissed.

1. Relevant facts are that plaintiffs (Respondent No. 1 to 6) filed Suit No. 24/1995 that was decreed. Thereafter present Applicant filed application under Section 12(2), CPC which was allowed and plaintiffs were directed to join applicant and the suit was directed to proceed afresh. Accordingly, respondents filed Suit No. 458/2003 that was decreed wherein nine (09) issues were framed. That judgment was challenged by present applicant that was also dismissed and through the present Revision Application, the applicant is claiming ownership on the basis of sale agreement dated 07.01.1989, whereas, respondents are claiming ownership allotted by KMC to their predecessor in interest Mr. Mirza Ayoub Baig. That issue was also framed by the learned trial Court and decided in affirmative.

3. The scope of Revisional jurisdiction of this Court is limited one, therefore, unless it is shown that findings of two Courts below are not, prima facie, illegal and perverse the same would not be disturbed. The principle is settled one, as reaffirmed in the case Muhammad Idrees v. Muhammad Parvez(2010 SCMR 5) that:

“It is settled principle of law that this Court seldom interferes in the concurrent conclusions arrived at by the Courts below while exercising power under article 185(3) of the constitution unless and until the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of a principle relating to appreciation of evidence, or, finally, if the finding could be demonstrated to be physically impossible. This being the practice and the rule of this Court in civil petitions, the burden lies rather heavily on the petitioner to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by us.”

1. In cases of Specific Performance of Contract the burden always remain upon the beneficiary of document to prove the document which burden always includes satisfaction of Article 79 of Qanun-e-Shahdat Order. The failure of such obligation shall always have its consequences. In the case Farid Bakhsh v. Jind Wadda (2015 SCMR 1044), it is detailed as:

“This Article is 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 if 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. The judgments rendered in the cases of Imtiaz Ahmed v. Ghulam Ali and others and Jameel Ahmed v. Late Safiuddin through Legal Representative (supra) have therefore no relevance to the case in hand. Reference to the judgment rendered in the: case of Nazir Ahmed v. Muhammad Rafiq (1993 CLC 257) (supra) cannot help the appellant when it being against the terms and meanings of the Article is per incuriam. In the case of Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs (PLD 2011 SC 241), this Court after defining the meanings of the word “attesting” in the light of Black’s Law Dictionary and other classical books and case law held that a document shall not be considered, taken as proved or used in evidence, if not proved in accordance with the requirements of Article 79 of the Order. (underlining is mine)

5. To see whether there is any illegality or patent mis-reading, likely to cause perpetuating a grave miscarriage of justice, I have examined the file. Perusal of the record shows that all issues were adjudicated and addressed by the learned trial Court through a splendid judgment and there is admission on the part of applicant that he failed to examine the marginal witnesses as well as he failed to submit any proof of payment of sale consideration and proof of possession as well construction. In contra respondents submit certain documents as Ex. P/3, P/4, P/5 & P/9 pertaining to lease issue by KMC in possession of Mirza Ayoub Baig as well they examined the relevant officer of KMC. It would be conducive to refer issue No. 6, [Suit No. 458/2003], which is that:

“In his cross-examination, the defendant No. 2 has admitted that he has not filed any affidavit in evidence as witness namely Maqsood son of Ali Akbar and other witnesses of the agreement of sale. He has admitted that he has not filed payment receipt in respect of amount of Rs. 1,50,000/- in Court nor produced the documents as mentioned in Exh. D/7, He has further admitted that since 1989, he has not installed the electricity and sui gas in his name in Plot No. 45. He has further admitted that he has not filed any documentary proof in respect of construction made by him on this plot No. 45. He has further submitted that the electricity meter is not installed in his name in both the plots No. 45 & 46. He has denied that there is no electricity installed in the name of any other persons .on Plot No. 46. He has admitted that he has not filed the. electricity bill in the name of any other persons over the suit plot. During cross-examination the defendant No,2 saw Exh. D/7 and Exh. D/8 and deposed that he cannot say as whether both the agreements have been written in same writing and same pen. He has further deposed that he cannot say at the time of purchasing of the stamp paper in the year 2000 he had purchased another stamp paper of the year 1989. He has denied that at that time both agreements was prepared and signed and decided by one person in the same handwriting. He has admitted that since 2000 he has in knowledge in respect of lease but he has not moved any application to for cancellation of lease since 2000 till today nor issued notice and also he has not filed any suit in the Court of law and / or application to the concerned department. He has Admitted that he has not applied for issuance of lease since 1989 to KMC in his name, He has further admitted that he has not produced any witness to prove that since 1989 till 2000 he was in possession of both the plots. He has also admitted that after execution of agreement of sale Exh. D/7 and D/8 thereafter he has not executed sale deed in my name. He has admitted that he has not changed the meter of sui gas in his

name instead of Muhammad Yaqoob. He has denied that he has implicated the false persons against the plaintiff and restrained the proceedings of the plaintiff in different suit. He has further denied that he has illegally occupied the plot plots Nos. 45 and 46 and intends to usurp the properties of the plaintiff and he is deposing falsely.

From the above discussed evidence, it came on record that the defendant, No. 2 is not a owner of the suit plots. He produced Exh. D/7 and Exh. D/8, these are only agreement of sale and settled law is that these documents are not a title documents. It is an admitted facts that the defendant No. 2 has not executed sale deed nor filed any suit for Specific Relief Act against the seller. Further the defendant No. 2 has not in possession of title documents and has failed to prove that he is owner of suit plots and also not create his status in capacity of owner. It means that defendant No. 2 is in possession of the suit property in capacity of trespass. Since long a litigation was is pending between, tine suit parties but the Defendant No. 2 not come in the Court and not clear his status. I, therefore, issue No. 6 is answered-accordingly”.

6. While examining the relevant judgment as well above para in juxtaposition of plea raised by the counsel for the applicant, I found the judgment to be in accordance with law; this is not a case of mis-reading and non-reading of evidence, hence, instant revision application is hereby dismissed alongwith listed application(s).

(Y.A.) Revision application dismissed

PLJ 2020 Karachi 124 (DB)

Present:Muhammad Shafi Siddiqui and Adnan-ul-Karim Memon, JJ.

RAEES AHMED ANSARI--Petitioner

versus

PAKISTAN STEEL MILL through Chairman, and 3 others--Respondents

C.P. No. D-5162 of 2013, heard on 5.9.2019.

Constitution of Pakistan, 1973--

----Arts. 199 & 212(3)--Constitutional petition--Dismissal from service-- Departmental appeal--Dismissed--Appeal before service tribunal--Dismissed--Writ petition--Disposed of--Principle of laches--Appropriate remedy--Maintainability--Question of--Whether instant petition is suffering from laches or otherwise--Jurisdiction--Entitlement for relief--It is evident from record that Petitioner after dismissal from service assailed Original and Appellate orders before FST in Service Appeal No. 199(k) (CE) 2004, which was decided against him--Petitioner being aggrieved by and dissatisfied with aforesaid decisions of department, called in question same before this Court in C.P No. D-584 of 2010, this Court disposed of his petition on same analogy--Petitioner being aggrieved by and dissatisfied with aforesaid order filed Miscellaneous Application No. 6002 of 2010 in same matter for restoration of his case, however same was MO dismissed--Petitioner did not stop here, he again took up matter before Sindh Labour Court at Karachi, however he met with same fate being barred by limitation--Surprisingly he assailed aforesaid decision before Labour Appellate Tribunal, Karachi in Appeal No. KAR-03 of 2012,which maintained judgment passed by Labour Court--Petitioner having faced agony of such proceedings--We asked Counsel to satisfy this Court with regard to maintainability of this petition on three counts; i.e. first his dismissal from service order passed in year 1993, second he availed all legal forums and failed on legal issues, third he failed to avail an appropriate remedy against orders passed by labour Court and labour Appellate Tribunal--Petitioner Is not entitled for relief which he is asking for through instant proceedings on premise that this Court cannot entertain grievance of Petitioner under Article 199 of Constitution, in view of bar contained under Article 212 (3) of Constriction which ousts jurisdiction of this Court--Ouster clause under Article 212 (3) and Article 185 of Constitution is a Constitution command, which restricts jurisdiction of this Court on subject, which squarely falls within exclusive domain of Hon’ble Supreme Court of Pakistan, being an Appellate Court in respect of decisions of Court and Service Tribunals--Therefore, forum chosen by Petitioner for invoking Constitutional Jurisdiction of this Court under Article 199 of Constitution is not proper under law--Petition was dismissed. [Pp. 126, 127 & 128] A, B, C, D, E & F

PLD 2010 SC 676 ref.

Mr. Imtiaz Hussain Solangi, Advocate for Petitioner.

Mr. Muhammad Nishat Warsi, Assistant Attorney General for Respondents.

Mr. Sannaullah Noor Guri, advocate for Respondent.

Date of hearing: 5.9.2019.

Order

Adnan-ul-Karim Memon, J.--Through the captioned Constitution Petition, Petitioner is asking for setting-aside the office order dated 22.7 1993 passed by the Management of Pakistan-Steel Mill, whereby major punishment of dismissal from Service was imposed upon him. Per petitioner his Departmental Appeal was too dismissed by the Competent Authority vide order dated 7.4.2004.

1. The important question in the present proceedings is whether the instant petition is suffering from laches or otherwise.

3. It is evident from the record that the Petitioner after dismissal from service assailed the Original and Appellate orders before the learned Federal Service Tribunal in Service Appeal No. 199(k) (CE) 2004, which was decided against him on 24.12.2009, in view of judgment passed by the Honorable Supreme Court in the case of Mubeen-us Salam and others vs. Federation of Pakistan and others (PLD 2006 SC 602), which is available on record at page No. 49 of the Memo of petition. Petitioner being aggrieved by and dissatisfied with the aforesaid decisions of the department, called in question the same before this Court in C.P No. D-584 of 2010, this Court vide order dated 7.5.2010 disposed of his petition on the same analogy as ordained by the Honorable Supreme Court in the case of PIA vs. Tanveer-ur-Rehman (PLD 2010 SC). Petitioner being aggrieved by and dissatisfied with the aforesaid Order filed Miscellaneous Application No. 6002 of 2010 in the same matter for restoration of his case, however the same was too dismissed vide order dated 3.6.2010. Petitioner did not stop here, he again took up the matter before the learned Sindh Labour Court at Karachi, however he met with the same fate vide judgment dated 29.11.2011, being bared by limitation. Surprisingly he assailed the aforesaid decision before the learned Labour Appellate Tribunal, Karachi in Appeal No. KAR-03 of 2012,which maintained the judgment passed by the learned Labour Court vide order dated 24.9.2013. Petitioner having faced the agony of such proceedings, took exception of the judgment dated 18.7.2013 passed by the Honorable Supreme Court in Civil Appeal No. 135-k of 2010 (available at page No. 69 of Memo of petition) approached this Court on 30.11.2013, for the same relief.

4. We asked the learned Counsel to satisfy this Court with regard to maintainability of this petition on three counts; i.e. first his dismissal horn service order passed in the year 1993, second he availed all the legal forums and failed on the legal issues, third he failed to avail an appropriate remedy against the orders passed by the learned labour Court and learned labour Appellate Tribunal.

1. Mr. Imtiaz Mansoor Solangi learned Counsel for the petitioner argued that the petitioner is victim of changing of legal forums in view of the judgment passed by the Honorable Supreme Court in the case of Mubeen-ul-salani, supra, therefore, he cannot be nonsuited without hearing. Learned Counsel explained on the point of laches and urged that he promptly assailed the termination order as well as appellate orders before the competent forums but was non-suited on the point of limitation; that he has not been heard on merits at all legal forums. He lastly prayed for allowing the petition.

2. Mr. Sanaullah Noor Ghouri, learned Counsel representing the Respondent No. 1 and 2 argued that Petitioner has no locus standi as the petition filed by the Petitioner is hit by laches as last order was conveyed to the Petitioner on 22.07.1993, whereas the instant petition had been filed by the Petitioner in the month of November 2013;’that the cases of the Pakistan Steel Mills cannot be entertained by this Court in view of the Judgment rendered by the Hon’ble Supreme Court in the case of PIA vs. Tanveer-Ur-Rehman (PLD 2010 SC 676) He lastly prayed for dismissal of the instant petition.

3. We have heard the learned Counsel for the parties on the question of maintainability of the instant petition and perused the material available on record and considered the decisions rendered by the Hon’ble Supreme Court as discussed supra.

4. The issue of maintainability of the captioned Constitutional Petition has been raised. To address the proposition, we deem it appropriate to have a look at the decision rendered by this Court in the earlier round of litigation initiated by the petitioner.

5. Record does not reflect that the aforesaid judgment was impugned by the petitioner before the Honorable Supreme Court, which lias now attained finality.

10. From the forgoing legal position of the case petitioner is not entitled for relief which he is asking for through the instant proceedings on the premise that this Court cannot entertain the grievance of the Petitioner under Article 199 of the Constitution, in view of the bar contained under Article 212 (3) of the Constitutional which ousts the jurisdiction of this Court. The ouster clause under Article 212 (3) and Article 185 of the Constitution is a Constitutional command, which restricts the jurisdiction of this Court on the subject, which squarely falls within the exclusive domain of the Hon’ble Supreme Court of Pakistan, being an Appellate Court in respect of the decisions of the Court and Service Tribunals. Therefore, the forum chosen by the Petitioner for invoking the Constitutional Jurisdiction of

this Court under Article 199 of the Constitution is not proper under the law.

1. In the light of forgoing legal position of the ease, this petition is not maintainable in law, thus is accordingly dismissed along with listed application(s), leaving the petitioner to avail an appropriate remedy in accordance with law.

(Y.A.) Petition dismissed

PLJ 2020 Lahore 1 (DB)

Present: Muhammad Sajid Mehmood Sethi and Muzamil Akhtar Shabir, JJ.

DIRECTOR INTELLIGENCE & INVESTIGATION--Appellant

versus

M/s. BIOCOS INTERNATIONAL & 5 others--Respondents

I.C.A. No. 9617 of 2019, decided on 27.3.2019

Sales Tax Act, 1990 (VII of 1990)--

----Ss. 37 & 38--Producing of record and seized--Business hampering--Directed to return data after retaining duplicate copies--Challenge to--As regards claim of appellant-department that data is required for purpose of criminally prosecuting against respondent Nos. 1 and 2, suffice it to say that learned counsel for applicant has not been able to point out any specific document which was required to be produced in evidence against respondent Nos. 1 and 2 and appellant-department cannot be allowed fishing inquiry by retaining entire documents with them which would adversely affect business of respondent Nos. 1 and 2--In absence of any specific mention of document, there is no ground to interfere in well-reasoned order of learned Single Judge in Chambers.

[Pp. 2 & 3] A

Mr. Khawar Ikram Bhatti, Advocate for Appellant.

Date of hearing : 27.3.2019

Order

Through this Intra Court Appeal, the appellant/department has challenged the order dated 28.01.2019 passed by learned Single Judge in Chambers, whereby while allowing the constitutional petition filed by Respondent Nos. 1 and 2, the appellant-department was directed to retain duplicate copies of the electronic data and other record which it has taken into custody and return the original to Respondents Nos. 1 and 2 so that they can resume their business activities in normal course which have been hampered.

1. Learned counsel for the appellant-department states that data and documents collected from office of respondent Nos. 1 and 2 is evidence against them to proceed further and in case any criminal case is made out against them, the original documents and data have to be produced in evidence.

2. Although the appellant-department could in terms of Sections 37 and 38 of the Sales Tax Act, 1990 require Respondent Nos. 1 and 2 to produce record or seize the same but could not retain and detain the said documents indefinitely for hampering the business of the said respondents. Therefore, learned Single Judge in Chambers was justified to direct the appellant-department to return the data after retaining duplicate copies of the same. The said findings of the learned Single Judge in Chambers is based on proper appreciation of the record and well founded, warranting no interference.

4. As regards the claim of the appellant-department that data is required for the purpose of criminally prosecuting against Respondent Nos. 1 and 2, suffice it to say that learned counsel for the

applicant has not been able to point out any specific document which was required to be produced in evidence against Respondent Nos. 1 and 2 and the appellant-department cannot be allowed fishing inquiry by retaining the entire documents with them which would adversely affect the business of Respondent Nos. 1 and 2. In the absence of any specific mention of document, there is no ground to interfere in the well-reasoned order of the learned Single Judge in Chambers.

1. For what has been discussed above, this appeal being devoid of any merits is dismissed.

(MMR) Appeal Dismissed

PLJ 2020 Lahore 3

Present : Muzamil Akhtar Shabir, J.

AHSAN IFTIKHAR--Appellant

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 ("Calender) Chapter 14, R. 14 and Chapter 15, R. 9(3) & (8)--Constitutional petition against orders passed by Disciplinary Committee as well as Appeal Committee of Board--Declaration of result--Cancellation of result--Charge sheet--Wrongful assumption--Challenge to--Non-mentioning of Chapter 14 Rule 14 in charge sheet clearly indicates that Board did not initiate proceedings against petitioner under said Rule which power was vested in it for cancellation/quashing of result after its declaration, therefore, by passing an order under said provisions without including same in charge sheet would be proceedings on wrong assumptions and not sustainable in eye of law, as what is not charged through a charge sheet cannot be proved--Time to invoke provision of Chapter 15 Rule 9 sub-Rules (3) & (8) had expired when petitioner's result has been declared--Although grounds referred in said Rule could have been made grounds for proceedings against petitioner if show-cause notice under correct provisions of law/rules had been issued by specifically mentioning same but show-cause notice having not mentioned provision of Chapter 14 Rule 14 of calendar was ambiguous, vague and devoid of power under which same was issued, consequently it could not be held that 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, 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 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 appearing in two next examinations could not have been 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--Petition was allowed. [Pp. 7 & 8] A & C

Jurisdiction--

----Wrongful assumption of jurisdiction--Consequently it is held that by not issuing charge sheet by mentioned Chapter 14 rule 14 of Calendar, and by mentioning provisions under Chapter 15 rule 9 sub-rules (3) & (8) only, for cancellation / quashing of already declared result, respondents had exercised a jurisdiction not vested in them, therefore, said exercise of jurisdiction is held to be without lawful authority--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 jurisdication; 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. 7 & 8] B & D

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 Respondents.

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) ………………………

(3) communicating or attempting to communicate, directly or indirectly, with an examiner with a view to influencing him in the award of marks;

(4) ………………………

(5) ………………………

(6) ………………………

(7) ………………………

(8) forging, mutilating, altering, erasing or otherwise tempering with any document connected with an examination or making undue use of such document or abetting in the commission of such offences;

(emphasis supplied)

1. The Rule 9 of Chapter 15 provides that the candidate, if found guilty of the offences mentioned therein, shall be disqualified from passing that examination and from appearing in two immediately following examinations. It is observed from the language of the afore-referred Rule that said provisions could only be exercised before the result of exainination was declared as the candidate is to be declared disqualified from passing the said examination and the same could not be invoked after result had been declared. After declaration of result, the petitioner could although be proceeded against and result could be quashed under Chapter 14 Rule 14 of the Calendar, the sail provision to proceed against the petitioner was not mentioned in the charge sheet and hence such powers were not actually exercised. The relevant portion of the said Chapter is reproduced below:

"14. The Board shall have the power to quash the result of a candidate at any time after it has been declared:

(1) if he has been disqualified for using unfair means in the examination; or

(2) if a mistake is found in his result; or

(3) if it is found that he was not eligible to appear in the examination; or

(4) for any other reason that may be determined by the Board;"

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 IshtiaqAhmad 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 the 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.

8. 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 examinations 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.

9. 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 jurisdication; 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.

1. For what has been discussed above, the afore-referred order dated 29.12.2019 passed by Discipline Committee and order dated 05.03.2019 passed by Appeal Committee are set aside. The instant petition is allowed accordingly.

Copy dasti on payment of usual charges.

(MMR) Petition Allowed

PLJ 2020 Lahore 8 [Multan Bench, Multan]

Present :Anwaarul Haq Pannun, J.

SHAHID HAMEED CHANDIA--Petitioner

versus

PRESIDING OFFICER ELECTION TRIBUNAL, D.G. KHAN DIVISION and others--Respondents

Writ Petition No.15814 of 2018, decided on 27.11.2018

Constitution of Pakistan, 1973--

----Art. 199--Punjab Local Government Act, 2013, Ss. 38, 39(4) & 46--Issuance of notification as returned candidates--Election petition for recounting of votes through local commission--Allowed--Interlocutory order--Maintainability--Question of whether a writ petition under Article 199 of Constitution of Pakistan, 1973 is maintainable against an interlocutory order passed by an election tribunal while trying an election petition or not--Challenge to--Interlocutory order passed by Election Tribunal cannot be questioned in Constitutional jurisdiction until same is patiently illegal and same for some reasons cannot even be challenged in form of statutory remedy conferred upon parties aggrieved of order on conclusion or final disposal of election petition--Petitioner, has a remedy, for questioning impugned order, after passing of final order in election petition by way of an appeal, under Section 46 of Act, hence, it cannot be said that petitioner is rendered remediless--Petition was dismissed. [Pp. 13 & 15] A & B

2015 SCMR 233, ref.

Syed Athar Hassan Shah Bukhari, Advocate for Petitioner.

Mr. Zafar Ullah Khan Khakwani, Advocate for Respondent No. 2.

Mian Adil Mushtaq, Assistant Advocate General for State.

Date of hearing : 27.11.2018.

Judgment

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called in question the order dated 24.10.2018 passed by Respondent No.1/Election Tribunal, D.G. Khan Division appointed under Section 39 of the Punjab Local Government Act, 2013 (hereinafter to be called as Act) whereby a miscellaneous application moved before the learned Election Tribunal by Respondent No.2, seeking recount of the votes through a local commission has been accepted.

1. Briefly, stating the facts of the case are that Respondent No.2 herein, instituted an election petition under Section 38 of the Act read with Rule 62 of the Punjab Local Government (Conduct of Elections) Rules, 2013 (hereinafter to be called as Rules) calling in question the notification issued under Section 37 of the Act, of Respondents Nos.2 and 7 by the Election Commission, as Returned Candidates i.e. Chairman and Vice-Chairman, Municipal Corporation, D.G. Khan respectively on multiple grounds with the following prayer:--

| | | --- | | | | | PLJ Urdu-1 |

1. Contesting written statements were filed refuting the allegations and averments contained in the Election Petition. The learned Election Tribunal, in view of divergent pleadings of the parties, on 01.08 2018 proceeded to frame the following issues:--

i) Whether the return of Respondents Nos. 1 and 7 is outcome of corrupt practice on the part of the election staff under the influence of local MNA? OPP

ii) Whether the Respondent No.1, in connivance with the polling staff, got stolen official stamps from some of polling booths for illegal use? OPP

iii) Whether the Presiding Officer did not allow the polling staff to do their job and appointed the polling staff of his own choice? OPP

iv) Whether the respondent managed to purchase ballot papers? OPP

v) Whether the petitioners were not provided copies of election forms by the RIO, if so its effect? OPD

vi) Whether the petition is not maintainable in its present form as the petitioner has not annexed necessary documents with it? OPR1

vii) Whether the petition is liable to be dismissed being time barred? OPR1

viii) Whether the election petition is based upon false and frivolous allegations as such liable to be dismissed with special costs? OPR1

ix) Relief.

1. The learned trial Court had recorded the statements of Muhammad Saleem Khan Tareen (PW-1), Mst. Shazia Bano (PW-2) and Atha Abbas (PW-3). On 03.09.2018 an application was moved by Respondent No.2 for summoning of one Ayesha Siddique, APO, which was replied by the contesting respondents and the same was yet to be decided, when on 03.10.2018 Respondent No.2 filed another application seeking recount of the ballot papers, through a local commission, which also was replied by the petitioner, however, vide impugned order dated 24.10.2018 the learned Election Tribunal was pleased to accept the application of Respondent No.2. The operative part of the impugned order is reproduced as under:-

"The application is, therefore, accepted and rechecking/ recounting of the ballot papers is ordered to be done through a local commission Mr. Tanveer ul Hassan, District Election Commissioner, Dera Ghazi Khan, is appointed as local commission who shall conduct the proceedings on 29.10.2018 at District Election Commissioner Office. Fee of local commission is fixed as Rs.40,000/- which shall be paid by the petitioners to the local commission before start of proceedings of recounting against a receipt. Parties are directed to join the proceedings at 10.00 a.m. sharp on 29.10.2018 in the office District Election Commissioner Dera Ghazi Khan. The local commission shall submit his report on or before 31.10.2018."

hence this petition.

1. At the very outset, learned counsel for the respondents while relying upon the ratio of law laid down in Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others (2015 SCMR 233), and an unreported judgment titled Imam Bakhsh and another v. Presiding Officer, Election Tribunal, Dera Ghazi Khan and others(in C.P. No.1138/2016) and Sajid Hussain Khan v. Presiding, Officer, Election Tribunal, Dera Ghazi Khan and others (in C.P. No.1139/2016) has questioned the maintainability of this writ petition on the ground that since the impugned order passed by the learned Election Tribunal is interlocutory in nature, the same cannot be challenged through writ petition, therefore, this petition is not maintainable, yet the learned Tribunal, has to pass a final order, and the petitioner, has a remedy for attacking the impugned order also by means of an appeal provided under Section 46 of the Act against the final order, which is a statutory right.

2. Learned counsel for the petitioner while relying upon the case-law reported in Mst. Ashifa Riaz Fatyana v. Mst. Nazia Raheel and 10 others (2011 CLC 48), submits that Respondent No.2, has to make out a case for recounted of the ballot papers after producing the requisite evidence, justifying the passing of order of recount by the Election Tribunal, also relied upon the case law reported in Chaudhary Pervez Elahi v. Muhammad Faiz Tamman and 2 others (2010 CLC 1490) to contend that recount could not be ordered in routine, factum of non-checking of votes properly, at the time of consolidation of results by the Returning Officer must be proved through evidence. In order to further strengthen his above submissions, the learned counsel for the petitioner has referred to Kanwar Ijaz Ali v. Irshad Ali and 2 others (PLD 1986 SC 483) and submits that the order impugned has been passed by the Election Tribunal in violation of ratio laid down by superior Courts, which is binding upon the Election Tribunal under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, the impugned order is void, ab-initio, hence liable to be struck down. Interestingly, he also relied upon the case of Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others (2015 SCMR 233) to meet the objection of maintainability.

3. Heard. Record perused.

4. The question, requiring its determination before this Court, in view of the arguments of both the learned counsel for the parties, noted above, is whether a writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is maintainable against, an interlocutory order passed by an Election Tribunal while trying an election petition or not? It will be advantageous to cite Section 39(4) and Section 46 of the Act, respectively hereunder:--

Section 39(4) of The Punjab Local Government Act, 2013:

(1) ……….

(2) ……….

(3) ……….

(4) The Election Tribunal shall decide an election petition within one hundred and twenty days from the date of filing of the election petition.

Section 46 of The Punjab Local Government Act, 2013:

Appeal against the orders of Election Tribunal.--

(i) Any person aggrieved by a final order of an Election Tribunal may, within thirty days of the communication of such order, prefer an appeal to the Lahore High Court.

(ii) The Lahore High Court shall decide an appeal preferred under subsection (1) within three months.

(Emphasis supplied).

9. The bare verbatim of the above noted provisions of law clearly indicate that the legislature, in its own wisdom, has enacted the above provisions, giving therein a time line, with an underlying object that the election disputes may be decided expeditiously and if the challenges are allowed to be thrown against the interlocutory orders passed by the Election Tribunal, the object of expeditious disposal and decision of the election petition may be defeated. It is well settled principle for interpretation of law that the Courts should interpret the law in furtherance of intention of legislature. In order for High Court to intervene in its Constitutional jurisdiction in an interlocutory order of the Election Tribunal, the order must not only be patiently illegal but if not struck down will leave the aggrieved party without remedy, by attaining the order finality. The legal position which emerges is that the interlocutory order passed by the Election Tribunal cannot be questioned in Constitutional jurisdiction until the same is patiently illegal and the same for some reasons cannot even be challenged in the form of statutory remedy conferred upon the parties aggrieved of the order on the conclusion or final disposal of the election petition. If the outcome of an election petition goes against a person/party who is also aggrieved of an interlocutory order passed during the proceedings, besides impugning the main judgment, he is entitled to assail the very legality of the interim order, and the consequences that flow from it. If the order is patently illegal and leaves a party without any remedy then, an interlocutory order may be challenged for exercising extra ordinary Constitutional jurisdiction of the High Court. The Hon'ble Supreme Court has in the recent past held in authoritative and conclusive judgment reported Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others (2015 SCMR 233) that interlocutory orders are not amenable to the jurisdiction of the High Court through Constitutional jurisdiction as a remedy by way of an appeal under Section 67 of the Act (Representation of the People Act (LXXXV of 1976)) was available to the aggrieved persons. The ratio in Muhammad Raza Hayat Hiraj's case mentioned hereinabove that an interlocutory order passed by Election Tribunal in an election petition cannot be impugned, by invoking Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 was, in fact laid in a case arising out of the matters pertaining to the election petitions, which were pending before the Tribunals constituted/appointed under the provisions of (Representation of the People Act (LXXXV of 1976). I have been able to lay my hand to an unreported judgment passed in Imam Bakhsh and another v. Presiding Officer, Election Tribunal, Dera Ghazi Khan and others (in C.P. No.1138/2016) arisen out of election petitions, under the Punjab Local Government Act, 2013, by the Hon'ble Supreme Court of Pakistan wherein in para-5 of the judgment a complete answer has been given which was under contemplation of this Court.

"We have heard the learned counsel and have gone through the record with their able assistance. The Act governs the subject and attends to the filing of election petitions (Section 38), constitution of election tribunals (Section 39), powers vesting in election tribunals (Section 40) and the decisions of election tribunals (Section 41). Section 46 of the Act, which provides for an appeal against final order of an election tribunal.

Section 46 of the Act provides that against the, "final order of an Election Tribunal" an appeal can be preferred to the High Court, significantly, it does not provide for any remedy against an interlocutory order. Mr. Babar Awan contends that since the statute does not permit an appeal against an interlocutory order, therefore, the constitutional jurisdiction of the High Court under Article 199 of the Constitution can be invoked. I cannot bring myself to argue with the learned counsel because it will not only defeat the specific language of the Act but would also unnecessarily delay the disposal of election petitions the early disposal of which the legislature has mandated by stipulating in subsections (2) of Section 46 that appeals shall he decided within period of three months. The tenure of elected persons is of a limited duration therefore, the delay decision of election disputes must not be thwarted, if challenges are permitted to be made to interlocutory orders, through petitions filed before the High Court which may eventually also come before this Court, then the remedy of an election petition and an appeal will be rendered illusory because in all probability the term of the person whose election has been challenged would have been completed or it would be close to completion. In any event a three member Bench of this Court in the case of Muhammad Raza Hayat Hiraj (above) held (paragraph 36, page 253) that;

"It follows from the above discussion that the interlocutory orders passed by the Election Tribunal impugned before the High Court were not liable to be set aside in its constitutional jurisdiction as the petitioners before the Court had a remedy available to them by way of appeal under Section 67 of the Act after disposal of the

election petitions. The impugned judgment of the Lahore High Court dated 28.2.2014, therefore, is maintained and similar opinion of the High Court of Sindh in Ali Gohar Khan Mahar's case (supra) and of the High Court of Balochistan in Dur Muhammad Khan Nasar's case (supra) is affirmed."

11. Since the petitioner, has a remedy, for questioning the impugned order, after passing of final order in the election petition by way of an appeal, under Section 46 of the Act, hence, it cannot be said that the petitioner is rendered remediless.

1. In the light of what has been discussed above, this petition is dismissed being not maintainable.

(Y.A.) Petition dismissed

PLJ 2020 Lahore 15 [Multan Bench Multan]

Present: Mujahid Mustaqeem Ahmed, J

AZEEM BUKHSH--Petitioner

versus

CHIEF EXECUTIVE OFFICER DISTRICT HEALTH AUTHORITY MUZAFFARGARH and 4 others--Respondents

W.P. No. 1894 of 2019, decided on 4.2.2019

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, 1860, Ss. 324 & 34--Registration of FIR--Non-issuance of MLC--Challenge to--Senior Medical Officer, Respondent No. 4 is directed to attend to grievance of petitioner and redress same by passing a legal order regarding issuance of Medico Legal Report in accordance with law at earliest, preferably within seven days from receipt of order of this Court--Compliance report be submitted to this Court through Deputy Registrar (Judicial). [P. 16] A

Syed Jaffar Tayyar Bukhari, Advocate for Petitioner.

Date of hearing: 4.2.2019.

Order

It has been maintained by the learned counsel for the petitioner that petitioner is injured of the occurrence reported vide case F.I.R.No.548, dated 01.12.2018, under Sections, 324/34 PPC registered at Police Station Shaher Sultan, District Muzaffargarh, who

remained admitted in R.H.C Shaher Sultan, but Respondent No.4 is not issuing his Medico Legal Certificate. As such by filing the instant petition following supplications have been made:--

"....that this petition may very kindly be graced with acceptance and the respondents may very kindly be directed to issue the MLC of the petitioner to meet the ends of justice."

2. The request being genuine is acceded to and the Senior Medical Officer, RHC Shaher Sultan, Tehsil Jatoi. District Muzaffargarh-Respondent No. 4 is directed to attend to the grievance of the petitioner and redress the same by passing a legal order regarding issuance of Medico Legal Report in accordance with law at the earliest, preferably within seven days from the receipt of order of this Court. The compliance report be submitted to this Court through Deputy Registrar (Judicial).

1. With the above direction, this petition stands disposed of.

(MMR) Petition disposed of

PLJ 2020 Lahore 16 (DB)

Present:Ali Baqar Najafi and Sardar Ahmed Naeem, JJ.

MARYAM NAWAZ SHARIF--Petitioner

versus

CHAIRMAN NAB etc.--Respondents

W.P. No. 56733 of 2019, decided on 31.10.2019.

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

----S. 9(a)--Anti-Money Laundering Act, 2010--Constitution of Islamic Republic of Pakistan 1973, Art. 199--Post arrest bail--Vicarious liability--Abetment--Beneficiary of assets--Disproportionate to known sources of income of accused person--Bail grant of--Accused being daughter of Ex-Prime Minister of Pakistan at various times, actively aided, abetted and facilitated in acquisition of two Sugar Mills--She became major shareholder having over 12 Million Shares (47% ownership), whereas co-accused became major shareholder in company over 12 Million Shares (46% ownership) during period 2014 to 2016 while he was Prime Minister of Pakistan--She thus acquired assets worth Rs. 2000 million from years 2008 to 2018 through illegal means and money laundering by concealing origin and nature, whereas she remained beneficiary of all such ill-gotten assets--The assets acquired through illegal means by concealing origin and nature of aforesaid assets, and by creating multiple layers of transactions in order to launder unexplained funds, committed offences-- JIT found that petitioner was real beneficiary owner and documents presented were found forged/tampered--Two important foundations do not prima-facie expose name of petitioner directly to suggest that she actively participated, connived, abetted or aided to acquire assets disproportionate to known sources of income--At time of incorporation of M/S. CSML in year 1981, petitioner was a minor, but allegations against her pertain to year 2008 and onward when she was not only minor but also shareholder with increased shareholding in M/S. CSML--A UAE national is concerned, official record pertaining to SECP does not show that he was not shareholder--Presumption of truth is attached to Form ‘A’--Statement recorded on 05.08.2019 u/s 164 of CrPC, photocopy of which was neither certified nor notarized by foreign office--A statement, in absence of petitioner and her learned counsel without permitting right to cross-examine, therefore, its effect may be considered by trial Court after recording of evidence--Even foreign officer making transaction with holder of public office may be come accused and falling in any category of “accused persons” but in present case such foreigners were not cited as accused persons--It has not come on record that petitioner had in any manner aided, abetted to persuade foreign nationals to send their money into M/s. CSML account--The offence under NAO, 1999 is an “intended” crime, therefore, to attract ingredients of this Section, further investigation will be required--The benefit of any such transaction should be clear and visibly established and should not be shrouded in mystery--In appropriate cases constitutional jurisdiction in respect of grant of bail can be exercised--The petitioner had also filed an application for interim bail so as to see her ailing father already hospitalized, prayer to extent of grant of interim bail--while exercising constitutional jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, this petition is allowed and admit petitioner to post arrest bail.

[P. 20, 25, 27, 28, 34, 35, 36, 39, 41] A, B, C, D, E, I, K, L, M, N, P & U

PLJ 2010 Lahore 78 (DB); PLD 2016 SC 620; PLD 2016 SC 454; PLD 1965 (W.P.) Lahore 461; PLD 1967 Lahore 186; 2002 P.Cr.L.J. 1712; PLD 2002 SC 572; 2010 P.Cr.L.J. 1988; 2017 P.Cr.L.J. 1258; PLD 2019 SC 445; PLD 2014 Federal Sharif Court 63; 1991 MLD 1814; 2005 P.Cr.L.J. 164; PLD 2003 Lahore 517; PLD 2016 Lahore 667; PLD 2018 SC 296; 1992 P.Cr.L.J. 58; 2012 P.Cr.L.J. 1983; 2016 P.Cr.L.J. 193; PLD 2017 SC 692; 2012 PTD 1883; PLD 2013 SC 594; 2017 SCMR 1218; 2016 P.Cr.L.J. 193 ref.

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

----S. 9(a)--Double Jeopardy--Article 13 of Constitution, 1973 read with Section 403 Cr.P.C., petitioner is facing repeating prosecution as JIT has already probed matter and Reference has been filed by orders of Hon’ble Supreme Court of Pakistan in Avenfield, therefore, present investigation/inquiry is unjustified and legally not sustainable--During proceedings in PANAMA case, M/S. CSML never remained as a subject of discussion, therefore, in our considered view NAB can possibly probe and investigate into matter and question of double jeopardy would not prime facie arise in favour of petitioner--Article 13 of Constitution and Section 403 Cr.P.C. and judgment cited at bar do not support petitioner.

[P. 29 & 34] F & H

PLD 1965 (W.P.) Lahore 461; PLD 1967 Lahore 186; 2002 P.Cr.L.J. 1712; PLD 2002 SC 572; 2010 P.Cr.L.J. 1988; PLJ 2010 Lahore 78 (DB); 2017 P.Cr.L.J. 1258 ref.

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

----Ss. 9(a)--Aider/abettor and a beneficiary--There is a difference between an aider/abettor and a beneficiary as former abets or aids with another who is a privy to acts itself but a beneficiary takes benefit or advantage of said act after event--A person aiding or abetting another in an act is privy to act itself but a beneficiary takes benefit or advantage of act after event and he may not necessarily be a party to act itself--Offence of abetment, shows elements of mens rea as sine qua non for constitution of said offence. [P. 36] M & N

PLD 2016 SC 454;1992 P.Cr.L.J. 58 ref.

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

----S. 9(a)--Anti-Money Laundering Act, 2010--Pecuniary resources of property--Mere possession of any pecuniary resources of property is not an offence but its failure to satisfactorily account for such possession of pecuniary resources of property that makes possession objectionable and constitute relevant offence. [P. 37] O

PLD 2011 SC 1144; PLD 2017 Lahore 23; PLD 2011 SC 1144 ref.

Interpretation of Statutes--

----Special Law--Over riding Effect--In case of conflict between two special laws containing over riding clauses, later-in-time would prevail over statute prior in time but this is not automatic instead a host of other factors will be attracted. [P. 39] Q

2017 SCMR 1218 ref.

Constitution of Pakistan, 1973--

----Art. 199--Scope of bail--Article 199 of Constitution for simple reason that constitutional jurisdiction which is always attracted where there is absence of alternate and efficacious remedy. However, besides considering hardship of case, merits of case will always be taken into consideration at time of deciding of bail application.

[P. 40] S

PLD 2019 SC 112 ref.

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

----S. 9(a)--Corruption and corrupt practices--Corruption and corrupt practices are rampant in our society, therefore, needed to be curbed with iron hands but at same time, this Court cannot keep its eyes off legal proposition that bail cannot be withheld as a punishment since this Court would otherwise transgress into power of trial Court to return its finding upon guilt on basis of evidence. [P. 40] T

PLD 2003 SC 668 ref.

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

----S. 497--Post arrest bail--Woman--grant of--Grant of bail to a woman is also discretionary but Courts have always been leaned towards such exercise, therefore, grant of bail to a woman should be a rule and discretion must be exercised in her favour in absence of compelling circumstances disentitling her to grant of bail--Common intention/abetment by a woman even in a murder case required further probe. [P. 42] V & W

1991 MLD 1814; 2005 P.Cr.L.J. 164; 2009 SCMR 751; 2009 SCMR 751; PLD 2019 SC 445 ref.

M/s. Azam Nazeer Tarar, Muhammad Amjad Pervaiz, Barrister Momin Malik, Shan Saeed Ghuman, Khawar Ikram Bhatti, Muhammad Aurangzeb, Muhammad Nawaz Chaudhry, Muhammad Adil Chatha, Salman Sarwar Rao, Sultan Mehmood Khan, Ch. Imtiaz Elahi and Hafeez-ur-Rehman, Advocates for the Petitioner.

M/s. Jahanzeb Bharwana, Ch. Khaliq-uz-Zaman, Addl. Prosecutors, Naeem Tariq Sanghera, Syed Faisal Raza Bukhari, Ahsan Rasool Chatha, Yasir Siddique Mughal, Arshad Qayyum and Muhammad Ali Chatha, Special Prosecutors for NAB with Usman Iftikhar, I.O./A.D., Aftab Ahmed, Case Officer/Addl. Director and Zafar Hussain Ahmed, Addl. A.G. for Respondents.

Date of hearing: 31.10.2019.

Order

Through this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioner seeks post arrest bail. She was served with following grounds of arrest:-

“(a) That the accused is involved in the acts of corruption and corrupt practices as defined under Section 9(a) of NAO, 1999 and schedule thereto and AML Act 2010 as she aided and abetted co-accused persons namely Mian Muhammad Nawaz Sharif and others in acquisition and laundering the funds which were disproportionate to the known sources of income of accused Mian Muhammad Nawaz Sharif. The accused Maryam Safdar is also a beneficiary of assets disproportionate to known sources of income of the accused persons.

(b) That the accused Mian Muhamad Nawaz Sharif remained Finance Minister Punjab, CM Punjab and Prime Minister of Pakistan. Accused Maryam Safdar being daughter of accused Mian Muhammad Nawaz Sharif and being Director/Chief Executive Officer/shareholder of Sugar Mill namely M/S. Chaudhry Sugar Mills Ltd. and M/S. Shamim Sugar Mills Ltd. at various times, actively aided, abetted and facilitated in acquisition of two Sugar Mills namely M/S Chaudhry Sugar Mills Ltd. and M/S. Shamim Sugar Mills Ltd. from the year 1992 to 2016 with the funds which are disproportionate to their known sources of income. That the accused Mian Muhammad Nawaz Sharif, Maryam Safdar and other accused persons/shareholders of said Sugar Mills could not account for the investments of over Rs. 2,000 millions in said companies.

(c) That the accused Maryam Safdar aided Mian Muhammad Nawaz Sharif in acquisition of 11.527 Million shares of M/S. CSML worth Rs. 400 Million (approx.) in her name which they cannot account for. That the said shares were fraudulently shown to be transferred from foreign nationals namely Saeed Saif Bin Jabar Al-Suweidi, Mr. Sheikh Zaka Ud Din and Hani Ahmad Jamjoom.

(d) That accused Maryam Safdar aided and abetted accused Mian Muhammad Nawaz Sharif, Yousaf Abbas and others, by layering through false and fictitious transfer of 11 Million shares of CSML in the name of foreigner namely Mr. Nasser Abdullah Hussain Lootah, in order to launder a foreign remittances of US $ 4.8 Million (approx.) by falsely representing it as consideration of 11 Million ordinary shares shown to be transferred to Mr. Nasser Lootah. That the said Mr. Nasser Abdullah Lootah was shown as shareholder in the M/S. CSML fictitiously as he had never acquired any shares in the CSML while the funds of $4.8 Million originally belonged to the said accused persons which had earlier been placed in Dubai, the sources of said funds have also not been explained so far.

(e) Accused Maryam Safdar in connivance with Mian Muhammad Nawaz Sharif and other acquired M/S. Shamim Sugar Mills Ltd. for Rs. 1,200 M (approx.) while the said accused persons had no sufficient/known sources of funds to acquire M/S. Shamim Sugar Mills Ltd.

(f) That the evidence collected so far reveals that the accused committed offences as defined u/s 9 (a) of NAO, 1999 and also u/s 3 of AML Act. 2010, by way of aiding and abetting in the commission of offences and also by acquiring obtaining illegal pecuniary benefits through corrupt, dishonest and illegal means.

(g) That despite 2 x call up notices the accused has neither provided the requisite record nor has offered any plausible defence.”

1. Brief facts as presented by the National Accountability Bureau (hereinafter to be called NAB) are that Financial Monitoring Unit (hereinafter to be called as FMU) Govt. of Pakistan vide its letter No. FMU/A&D/499/2018 dated 12.01.2018 forwarded a Suspicious Transaction Report (hereinafter to be called as STR) and Currency Transaction Report hereinafter to be called CTR to the Chairman NAB regarding various suspicious transactions of huge amounts in the account of M/s. Chaudhry Sugar Mills Limited (hereinafter to be called as M/S. SCML), co-accused Mian Muhammad Nawaz Sharif and the petitioner/Maryam Nawaz and other employees/relatives and the co-accused persons. The competent authority authorized inquiry No. 1(9)/HQ/2023/NAB-L on 14.11.2008 against the petitioner and others on the allegation of commission of offences of corruption and corrupt practices and money laundering as defined under Section 9(a) of National Accountability Ordinance, 1999 (hereinafter to be called as NAO, 1999) read with Anti-Money Laundering Act, 2010 (hereinafter to be called AMLA, 2010) and schedule thereto. According to the NAB, STR/CTR were carried out in respect of 45 following bank accounts of M/S. CSML:--

| | | | | | --- | --- | --- | --- | | Organization | Branch | Account No. | Title of Account | | Habib Bank Limited | Chak No. 45 GB | 6667100080303 | Shamim Sugar Mills Pvt. Ltd. | | Bank Al-Falah Ltd. | Gojra | 1002801828 | Choudhary Sugar Mills Ltd. | | National Bank of Pakistan | Main Branch Gojra | - | Choudhry Sugar Mills Ltd. | | United Bank | Gojra | 101622 | Choudhary Sugar Mills Ltd. | | United Bank | Gojra | 101622 | Choudhary Sugar Mills Ltd. | | Bank Al-Falah Ltd. | Gojra | 1600290004 | Choudhary Sugar Mills Ltd. | | Bank Al-Falah Ltd. | Gulberg, Lahore | 0028-01037913 | Choudhary Sugar Mills Ltd. | | Bank Al-Falah Ltd. | Gulberg, Lahore | 0028-02923650 | Choudhary Sugar Mills Ltd. | | Bank Al-Falah Ltd. | Gulberg, Lahore | 1003565759 | Choudhary Sugar Mills Ltd. | | United Bank | Gojra | 40401016229 | Choudhary Sugar Mills Ltd. | | NIB Bank | Old Race Course Road Branch, Lahore | 4173037 | CSML Sugar Division | | National Bank of Pakistan | Model Branch Gulberg (Hub Branch) | 22.6760-2 | Choudhary Sugar Mills Ltd. | | Allied Bank Ltd. | Tehsil Road Gojra, TT Singh | 10000327420043 | Choudhary Sugar Mills Ltd. | | Habib Bank Ltd. | Choudhry Sugar Mills Chak No. 282/jb | 10040003893203 | Choudhary Sugar Mills Ltd. | | Habib Bank Ltd. | Choudhry Sugar Mills Chak No. 282/jb | 10040002156103 | Choudhary Sugar Mills Ltd. | | Habib Bank Ltd. | Choudhry Sugar Mills Chak No. 282/jb | 10040389203 | Choudhary Sugar Mills Ltd. | | Habib Bank Ltd. | Choudhry Sugar Mills Chak No. 282/jb | 1004000389203 | Choudhary Sugar Mills Ltd. | | Habib Bank Ltd. | Choudhry Sugar Mills Chak No. 282/jb | 10197900419303 | Choudhary Sugar Mills Ltd. | | Habib Bank Ltd. | Choudhry Sugar Mills Chak No. 282/jb | 10040002158103 | Choudhary Sugar Mills Ltd. | | Habib Bank Ltd. | Choudhry Sugar Mills Chak No. 282/jb | 1004002156103 | Choudhary Sugar Mills Ltd. | | Habib Bank Ltd. | Choudhry Sugar Mills Chak No. 282/jb | 10000000000000 | Imprest A/C Ch. Sugar Mills | | Habib Bank Ltd. | Choudhry Sugar Mills Chak No. 282/jb | 10040000000000 | Imprest A/C Ch Sugar Mills | | Habib Bank Ltd. | Choudhry Sugar Mills Chak No. 282/jb | - | Imprest A/C Ch Sugar Mills | | Allied Bank Ltd. | Tehsil Road Gojra TT Sing | 11150001 | Choudhary Sugar Mills Ltd. | | Habib Bank Ltd. | Lahore Corporate Center | 12420201055803 | Choudhary Sugar Mills Ltd. | | Habib Bank Limited | Lahore new Muslim Town | 13150012144803 | Choudhary Sugar Mills Ltd. | | Bank Al-Falah Ltd. | Gujra | 16002900004 | Choudhary Sugar Mills Ltd. | | Bank Al-Falah Ltd. | Gujra | 16002900009 | Choudhary Sugar Mills Ltd. | | Habib Bank Ltd. | Gojra New Railway Road Distt. T.T. Singh | 1080020806503 | Choudhary Sugar Mills Ltd | | MCB Bank Ltd. | New Garden Town Lahore | 108001010028601 | Choudhary Sugar Mills Ltd | | MCB Bank Ltd. | Gojra Main | 33403010000013 | Choudhary Sugar Mills Ltd | | Faysal Bank Ltd. | Gojra Branch, Gojra | 2800070000409 | Choudhary Sugar Mills Ltd | | Bank Al-Falah Ltd. | Gulerg, Lahore | 00281003565760 | Choudhary Sugar Mills Ltd | | Allied Bank Ltd. | Garden Town, Lahore | 10000327420037 | Choudhary Sugar Mills Ltd | | Habib Bank Ltd. | Lahore New Garden Town, Lahore | 10607900267703 | Choudhary Sugar Mills Ltd | | Habib Bank Ltd. | Coudhary Sugar Mill Chak No. 282/jb | 100440002156103 | Choudhary Sugar Mills Ltd | | United Bank Ltd. | Liberty Market, Lahotre | 96201123776 | Choudhary Sugar Mills Ltd | | Bank Al-Falah Ltd | Gulberg, Lahore | 1003565760 | Choudhary Sugar Mills Ltd | | The Bank of Punjab | Gojra | 0079BTA010327000 | Choudhary Sugar Mills Ltd | | Allied Bank Ltd. | Bridge Colony, Lahore | 10000327420050 | Choudhary Sugar Mills Ltd | | Habib Bank Ltd. | Pir Mahal | 1747901254703 | Choudhary Sugar Mills Ltd | | Habib Bank Ltd. | Kot Samaba Main Bazar | 9057900416003 | Choudhary Sugar Mills Ltd | | MCB Bank Ltd. | Kot Samaba | 868800041006967 | Choudhary Sugar Mills Ltd | | Soneri Bank Ltd. | Sheikho Sugar Mills | 2012906073 | Choudhary Sugar Mills Ltd | | Bank Al-Falah Ltd. | Gulberg, Lahore | 10033553480 | Choudhary Sugar Mills Ltd |

The allegations against petitioner/Maryam Nawaz Sharif, is that she was appointed as Director of M/S. CSML in 1992 and continued untill 1997 and she also served as Chief Executive Officer (CEO) of M/S. CSML for the years 1995-96 by acquiring 864,000 ordinary shares which remained in her name till 2008. However, from 2008 to 2010 she became the major shareholder having over 12 Million Shares (47% ownership), whereas co-accused Mian Muhammad Nawaz Sharif, became the major shareholder in the company over 12 Million Shares (46% ownership) during the period 2014 to 2016 while he was the Prime Minister of Pakistan. The petitioner allegedly in connivance with co-accused Mian Muhammad Nawaz Sharif and Abbas Sharif, her uncle, acquired M/S. Shamim Sugar Mills (hereinafter to be called as M/S. SSML) in the year 2011 without explaining the origin of funds. The petitioner allegedly in aid and abetment with co-accused through illegal means, without disclosing the sources/origin of the funds obtained funds worth US $ 4.8 million. In addition, aided and abetted in obtaining another amount of Rs. 230 million from UAE in the form of foreign payments for the ultimate benefit of herself and her co- accused persons without disclosing the source. She thus acquired assets worth Rs. 2000 million from the years 2008 to 2018 through illegal means and money laundering by concealing the origin and nature, whereas she remained beneficiary of all such ill-gotten assets.

1. The petitioner was arrested on 08.08.2019 consequent to the warrant of arrest issued by the Chairman NAB and according to NAB during the physical remand she failed to explain the sources of funds for investments of Rs. 260 million contributing to the sale price of Rs. 1200 million shares, and admitted having acquired shares worth Rs. 440 million but again could not explain her sources. She was also confronted with the Telegraph Transfers (TT) of US$ 4.8 million on 25.11.2010 received from UAE in the account of co-accused Yousaf Abbas Sharif, which was transferred into the account of M/S. CSML when she was the major shareholder, but she could not explain the sources of transactions. Likewise, her both cousins namely, Yousaf Abbas Sharif, and Abdul Aziz Abbas Sharif, received 12 payments of Rs. 230 million originated from exchange companies based in UAE during the year 2013 and she being the direct beneficiary of foreign transaction could not justify it. According to the NAB, said co- accused said cousins of the petitioner invested Rs. 260 million for acquiring M/S. SSML in the year 2011 increasing its worth to Rs. 1200 million whereas, they only contributed Rs. 230 million from their personal sources and the rest of the investment was not explained. According to Form-A dated 31.12.2008 issued by Securities & Exchange Commission of Pakistan (hereinafter to be called as SECP) in respect of M/s. CSML Sheikh Zaka Ud Din was holding 2,021,760, Saeed Saif Bin Jabar Al-Suweidi, 9,409,090, and Hani Ahmed Jamjoon, 97,033 shares making them a total shares of 11,527,883. According to the SECP report, these shares were transferred to the petitioner on 21.05.2008 and the average price of share was Rs. 38.17 per share and the shares held by the family were not enough to purchase the shares of above foreigners in the company. According to the Federal Board of Revenue (hereinafter to be called as FBR), record, the petitioner had declared the income of Rs. 7,732,370/- between 1992 to 2008 whereas that of co-accused Mian Muhammad Nawaz Sharif, between 1985 to 2008 was 15,640,600/- and that of late Kalsoom Nawaz, of the said year was 6,075,454/- and the amount required to purchase 11,527,883 shares was Rs. 440,019,294/-, therefore, they had the deficiency of funds of Rs. 41,570,870/-.

2. According to the NAB, during the year 2010 co-accused Yousaf Abbas Sharif, received a telegraphic Transfer (TT) of US $ 4,88,000/- equivalent to PKR 417,472,100/- in his account No. 02809616 maintained at Bank Al-Falah Gulberg Brach, Lahore on 25.11.2010 from Naseer Lootah of UAE as foreign investment in lieu of 11 million original shares of M/S. CSML transferred in his name. However, Naseer Lootah, had denied having made any investment in M/S. CSML for purchase of shares and he stated that US $ 4,885,000/- was invested by Sharif family in 2010 in his real estate business in UAE which was returned to co-accused/Yousaf Abbas Sharif through TT of US $ 4.8 million. This amount of approximately 4.7 million was transferred by Yousaf Abbas Sharif, into the account of M/S. CSML in Bank Al-Falah Gulberg Branch, Lahore and as such the petitioner and her father, Mian Muhammad Nawaz Sharif, the major shareholders had become the beneficiary of unexplained proceeds. Yousaf Abbas Sharif was holder of only 3% ownership and in one year he became the owner of 45% shares as the major shareholder in order to whiten unaccounted funds received from UAE. During the year 2013, Yousaf Abbas Sharif, received 5 payments amounting to Rs. 130 million without declaring the source of income or investment in UAE in his account No. 0490162781006118 maintained at MCB Bank Branch New Garden Town, Lahore which he further transferred to M/S. CSML account No. 0108001010028601 at MCB Bank Branch New Garden Town, Lahore. Likewise, in the year 2013, co-accused Abdul Aziz Abbas Sharif, another cousin of the petitioner, received 7 payments from the exchange companies of UAE amounting to Rs. 100 million in his personal account No. 516398571005976 maintained at MCB Bank Branch New Garden Town, Lahore without any source of income or investment in UAE from his another account No. 0490162781006118 transferred the amounts in M/s. CSML in Account No. 01080010110028601 both MCB Bank Branch New Garden Town, Lahore.

5. In nutshell, according to the NAB, the evidence so far collected revealed that petitioner with the co-accused Mian Muhammad Nawaz Sharif, Yousaf Abbas Sharif and Abdul Aziz Abbas Sharif, and others with active aid, abetment and assistance of each other have accumulated assets disproportionate to their known sources of income in M/s. SSM in the year 2011 and in form of huge investments/deposit of unexplained money in the bank account of M/S. CSML from year 2008 to 2018, thus the assets acquired through illegal means by concealing the origin and nature of aforesaid assets, and by creating multiple layers of transactions in order to launder unexplained funds, committed the offences as defined under Anti-Money Laundering AML Act, 2010 read with Section 9(a)(xii) of NAO, 1999.

1. To fortify the prosecution case, it has been emphasized in the report and parawise comments submitted by the NAB that the party of petitioner family Pakistan Muslim League (N) was sitting at the helm of affairs of Pakistan yet the inquiry was conducted and investigation made, and according to the information/record collected, revealed/disclosed from a PANAMA based law firm, namely, Mossack Fonseca commonly referred as “PANAMA PAPERS” the petitioner’s family was found to have connections with offshore companies. The Hon’ble Supreme Court of Pakistan seized of the matter constituted a high profiled Joint Investigation Team (to be called JIT) to investigate, and after giving exhaustive hearings, the co-accused Mian Muahmmad Nawaz Sharif, was declared as not honest in terms of Section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973 and disqualified to be a member of Parliament. The apex Court also directed the NAB to prepare and file Reference within six (6) weeks against the petitioner, her husband, father, brothers, amongst other relatives in respect of the Avenfield properties. Resultantly, ACR No. 19 of 2017 was filed and the co-accused Mian Muhammad Nawaz Sharif, was convicted and sentenced which shows that he was the real owner of the assets. According to the NAB, the JIT was constituted with the majority of 3 to 2 by the apex Court and the petitioner joined the proceedings and while admitting the ownership of Avenfield properties introduced certain claims regarding its acquisition. The JIT found that petitioner was the real beneficiary owner of BVI companies namely Nielson Enterprises Limited and Nescoll Limited and the documents presented were found forged/tampered. A Reference No. 19 of 2017 was also filed against Mian Muhammad Nawaz Sharif and others regarding Azizia Steel Company in which he was convicted and sentenced and Reference No. 18 of 2017 was also filed against Mian Muhammad Nawaz Sharif and others regarding 16 companies and Reference No. 20 of 2017 was also filed regarding Avenfield properties.

7. Mr. Azam Nazeer Tarar and Mr. Muhammad Amjad Pervaiz, the learned counsel for the petitioner submit that the allegations levelled against the petitioner Maryam Nawaz Sharif is that of abetment and aiding the commission of offence under Section 9(a) of NAO, 1999 and that she is not the principal accused. Add that Section 9(a)(xii) of NAO, 1999 was added on 23.11.2002 vide Ordinance No. CXXXIII of 2002 and in view of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 and the view given in case titled “Brig. ® Karrar Ali Agha vs. National Accountability Court No. II, Lahore and another” reported as PLJ 2010 Lahore 78 (DB) and case titled “The State through Chairman NAB and others vs. Muhammad Asif Saigol and others” reported as PLD 2016 SC 620 (para 12) it cannot be given a retrospective effect. Add that there is no deeming clause in the amending Ordinance, therefore, such amendment is prospective in nature and not retrospective in effect, thus, cannot be applied to the petitioner. Further added that the NAO, 1999 was promulgated on 16.11.1999 and under Section 2 whereof it had effect from January, 1985, therefore, it could not be applied on the petitioner on the given allegations. They further contended that the petitioner was born on 28.10.1973 and was minor at the time when M/s. CSML was incorporated on 05.04.1981. Argued that she just remained as a shareholder since it was the part of her family enterprise as reflected from Form A issued by SECP in 1983. She remained a Director from 1992 to 1997 and Chief Executive in the year 1995-96 at the time when her grandfather Mian Muhammad Sharif (died on 19.10.2004) had been controlling and supervising the M/s. CSML and after his death his other son, namely, Mian Abbas Sharif managed it as CEO until his death on 11.01.2013 whereafter his son Mian Yousaf Abbas Sharif her cousin has been running the M/S. CSML as CEO. Also argued that in violation of Article 13 of the Constitution as well as Section 403 Cr.P.C., the petitioner is facing repeating prosecution as the JIT has already probed the matter and Reference has been filed by the orders of Hon’ble Supreme Court of Pakistan in Avenfield, therefore, present investigation/inquiry is unjustified and legally not sustainable. Further argued that the charge was framed in Al-Azizia Reference in respect of the properties including M/S. CSML, therefore, further inquiry is uncalled for. Add that the petitioner is not the beneficiary of M/S. CSML and that being a mere beneficiary will not attract any offence under NAO, 1999 in view of the law laid down by the apex Court in case titled “Abdul Hameed Dogar vs. Fedceral Government through Secretary Ministry of Interior and 2 others” reported as PLD 2016 SC 454. Added that the STR/CTR was prepared on the basis of surmises and conjectures and the correct figure of the alleged amount was not even mentioned. Add that the case of the petitioner is at the most of vicarious liability which could only be determined by the learned trial Court after recording evidence at trial, therefore, she is entitled to post arrest bail. Lastly, submit that petitioner is a woman who is otherwise entitled to the bail keeping in view the various case laws. They relied upon case titled “Muhammad Ikram and others vs. The State” reported as PLD 1965 (W.P.) Lahore 461, case titled “Mst. Ramzan Bibi and another vs. Hakim Muzaffar Hussain” reported as PLD 1967 Lahore 186, case titled “Ramesh Maudeshi vs. The State” reported as 2002 P.Cr.L.J. 1712, case titled “Ch. Tanveer Khan vs. Chairman, National Accountability Bureau and others” reported as PLD 2002 SC 572, case titled “Badar Alam Bachani vs. The State through Chairman NAB and another” reported as 2010 P.Cr.L.J. 1988, case titled “Noorshad vs. Chairman National Accountability Bureau and 5 others” reported as 2017 P.Cr.L.J. 1258. Also relies upon case titled “Chairman, National Accountability Bureau, Islamabad through Prosecutor General Accountability, Islamabad vs. Mian Muhammad Nawaz Sharif and 2 others” reported as PLD 2019 SC 445, case titled “Muhammad Zoonoon Khan vs. Federation of Pakistan through Secretary Ministry of Law, Justice, Human Rights and Parliaments Affairs, Islamabad” reported as PLD 2014 Federal Sharif Court 63, case titled “Miss Shahla Raza vs. The State” reported as 1991 MLD 1814, case titled “Mst. Afsar Bibi vs. The State” reported as 2005 P.Cr.L.J. 164 and case titled “Khan Haroon Resikh vs. The State and 2 others” reported as PLD 2003 Lahore 517. Also places reliance upon case titled “Messrs Hudaibya Paper Mills Ltd. and others vs. Federation of Pakistan and others” reported as PLD 2016 Lahore 667 and case titled “National Accountability Bureau (NAB) through Chairman vs. Messrs Hudaibya Paper Mills Limited Lahore and others” reported as PLD 2018 SC 296. Also relies upon case titled “Asif Ali Zardari vs. The State and another” reported as 1992 P.Cr.L.J. 58, case titled “Tariq Sultan and another vs. National Accountability Bureaue through Chairman and 2 others” reported as 2012 P.Cr.L.J. 1983, case titled “Dr. Asghar Ali vs. The State and others” reported as 2016 P.Cr.L.J. 193.

1. Mr. Jahanzaib Bharwana, learned Additional Special Prosecutor for NAB submits that extra ordinary jurisdiction regarding grant of bail is to be exercised in extra ordinary circumstances and not in run of the mill case or as a matter of course, and only when the custody of the accused was shockingly, unconscionable or inordinately delayed and not otherwise, and that primary consideration for the grant of bail is undue hardship and, more often than not, prima facie merits of the case are also to be looked into. Also submits that High Courts have already been burdened with the bail application under Article 199 of the Constitution, therefore, such powers are to be exercised in circumspection and caution as extra ordinary jurisdiction is invoked and exercised to advance the cause of justice and not to frustrate it or to defeat the intent of law and just to prevent the miscarriage of justice and abuse of NAO, 1999 and not a substitute of power under Sections 426, 491, 497, 498 and 561-A Cr.P.C. to be exercised liberally and indiscriminately as ordinary criminal jurisdiction. Adds that prima facie sufficient material is available on record to connect the petitioner with the commission of offence and that the purpose of NAO, 1999 is to curb is not commonplace and the offenders who indulged in it are not of the normal type as these are the crimes not against the individual but against the society, therefore, response has to be dynamic and punitive rather than benign or curative and it was also argued that it may be true that an individual subjected to the rigours of this law may sometime suffer disproportionately but the greater good of the society emerging from stringent applications of this law may make this approach worth its while. According to the learned Prosecutor as stated in the parawise comments, there is a likelihood of her fleeing from the country or going underground or becoming unavailable like co-accused Yousaf Abbas Sharif, who tried to flee/abscond from the country. Adds that record does not show/substantiate the false, evasive, vague and unfounded allegations of malice or malafide on the part of the NAB, therefore, petition does not qualify to be allowed since factual controversies have been raised. Also submits that Hon’ble Supreme Court of Pakistan had framed 13 questions to be probed by the JIT and vide order dated 28.07.2018, upon the receipt of the said JIT report, NAB was directed to file Reference against Mian Muhammad Nawaz Sharif, petitioner, Hussain Nawaz, Hassan Nawaz and Capt. ® Muhammad Safdar, relating to Avenfield properties (Flats No. 16, 16-A, 17 and 17-A, Avenfield House, Park Lane, London, UK.

2. Arguments heard. File perused.

3. After hearing the learned counsel for the petitioner and the learned Prosecutors for NAB assisted by Investigating Officer/case officer and perusing the record placed before this Court, we have straightway noticed that petitioner being a woman had invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for the grant of her post arrest bail made on the allegation that she aided and abetted as CEO/Director/ shareholder of M/s. CSML and SSML to facilitate in acquiring of assets disproportionate to the known sources of income of the petitioner, her father namely, Mian Muhammad Nawaz Sharif, and others since their investment of Rs. 2000 Million was not accounted for. She has also been alleged to have aided her father to acquire 11.572 Million shares of M/S. CSML worth Rs. 400 Million statedly transferred by three foreign nationals namely, Saeed Saif Bin Jabar Al-Suweidi, Sh. Zaka-ud-Din and Hani Ahmed Jamjoom. Another UAE national, namely, Nasser Abdullah Hussain Lootah, made TT of US$ 4.8 Million as consideration for 11 Million ordinary shares was found false only in view of his statement recorded on 03.08.2019. She has also been alleged to have connived with her father to acquire assets of SSML of worth Rs. 1200 Million without disclosing the sufficient funds and thus she aided and abetted her co- accused person to gain and extend pecuniary benefits through corruption and corrupt practices.

4. According to Section 9 (a)(xii) of NAO, 1999 if someone aids, assists, abets, attempts or acts in conspiracy with a person or a holder of public office, accused of an offence defined in Section 9(a) (i) to (xi) of NAO, 1999, can be punished under Section 10 of NAO, 1999 for a term which may extend to 14 years. This Section was not originally in the Ordinance but was added through Ordinance No CXXXIII of 2002 dated 23.11.2002 obviously without retrospective effect. However, the allegations were levelled for the period of the year 2008 onward, therefor, this section prima facie can be attracted in the present case with Reference to its existence at the time of alleged crime.

5. Since the case was argued before us with a well-known background, therefore, it would be expedient to lay down some basic premise for the purposes of our discussion essential for the order in present case. In the judgment reported as PLD 2017 Supreme Court 692, a final order was announced under which NAB Rawalpindi/Islamabad was directed to file Reference within a period of 6 weeks on the basis of material collected and referred to by the JIT in its report and such other material as may be available with FIA and NAB having any nexus with the assets mentioned or which may subsequently become available pursuant to the Mutual Legal Assistance Request sent by JIT to different jurisdictions. In clause “a” of the said order Reference was to be filed against the petitioner and others in respect of Avenfield properties in UK and under clause “c” on the basis of statements of Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani and Saeed Ahmed, made against the petitioner leading to the acquisition of assets beyond the known sources of income, and under clause “f” any supplementary Reference could also be filed. Notably, M/S. CSML was not mentioned anywhere. Relevant extract is reproduced as under:-

“FINAL ORDER OF THE COURT.

The National Accountability Bureau (NAB) shall within six weeks from the date of this judgment prepare and file before the Accountability Court, Rawalpindi/Islamabad, the following References, on the basis of the matrial collected and referred to by the Joint Investigating Team (JIT) in its report and such other material as may be available with the Federal \Investigation Agency (FIA) and NAB having any nexus with assets mentioned below or which may subsequently become available including material that may come before it pursuant to the Mutual Legal Assistance requests sent by the JIT to different jurisdictions:-

(a) Reference against Mian Muhammad Nawaz Sharif, (Respondent No. 1) Maryam Nawaz Sharif (Maryam Safdar), (Respondent No. 6), Hussain Nawaz Sharif (Respondent No. 7), Hassan Nawaz Sharif (Respondent No. 8) and Capt. (Retd). Muhammad Safdar (Respondent No. 9) relating to the Avenfield properties (Flats Nos. 16, 16-A, 17 and 17-A Avenfield House, Park Lane, London, United Kingdom). In preparing and filing this Reference, the NAB shall also consider the material already collected during the course of investigations conducted earlier, as indicated in the detailed judgments.

(b) …………

(c) …………

(d) …………

(e) NAB shall also include in the proceedings all other persons including Sheikh Saeed, Musa Ghani, Kashif Masood Qazi, Javaid Kiyani and Saeed Ahmad, who have any direct or indirect nexus or connection with the actions of Respondents Nos.1, 6, 7, 8 and 10 leading to acquisition of assets and funds beyond their known sources of income.”

1. On 12.01.2018 STR/CTR were received in respect of politically exposed persons and linked individuals/entities on the basis of details in Volume 1 and 2 of the report submitted before the Supreme Court and according to clause 5 thereof, in respect of M/S. CSML, the petitioner was mentioned as one of the directors amongst many others; a status which is not denied by the petitioner. In the analysis of STR/CTR, a reference was given to the report submitted by HBL in respect of M/S. CSML dated 22.09.2017 in respect of account maintained with their Corporate Center Branch since 24.10.1998 and under clause “5(a)” of CONCLUSION AND RECOMMENDATIONS a mention was made to the judgment of PANAMA Papers against Mian Muhammad Nawaz Sharif by the Supreme Court of Pakistan and it was stated that M/S. CSML had maintained several accounts in the business name of HBL, some of them have been closed and some remained dormant since it was mostly for business transaction. One transaction in the MCB Bank account of Mian Muhammad Nawaz Sharif reflects transfer of Rs. 18.019 Million to M/S. CSML and Rs. 2.335 Million transferred from SCB account to Mian Muhammad Nawaz Sharif and then to M/S. CSML. But the name of the petitioner does not figure out anywhere. Relevant excerpt is reproduced as under:-

“5. The other STRs/CTRs received pertained to Chaudhary Sugar Mills Ltd, Mian Muhammad Shahbaz Sharif and some possibly linked individuals. The STRs were raised in the backdrop of the judgment on Panama Papers case against Mian Muhammad Nawaz Sharif by the Supreme Court of Pakistan.

a. ChaudharySugar Mills had been maintaining several accounts in the business name with HBL, some of which have been closed or become inactive over a period of time. However, the suspicion was not raised on any particular transaction in the accounts of Chaudhary Sugar Mills. The transactions in the accounts mostly appear to be business transactions. One of the transactions in the MCB account of Mian Nawaz Sharif reflects transfer of Rs. 18.019 M to M/s. Chaudhary Sugar Mills Ltd. Likewise, funds amounting to Rs. 2,335 M were transferred from SCB account of Mian Nawaz Sharif to M/s. Chaudhary Sugar Mills Ltd.”

14. These two important foundations do not prima-facie expose the name of petitioner directly to suggest that she actively participated, connived, abetted or aided to acquire assets disproportionate to the known sources of income since no connection of the petitioner was established with said foreign nationals in order to persuade them to invest in M/S. CSML to attract the provisions of NAO, 1999 & AMLA 2010.

15. It has also not been denied by either party that during the proceedings in the PANAMA case, M/S. CSML never remained as a subject of discussion, therefore, in our considered view NAB can possibly probe and investigate into the matter and the question of double jeopardy would not prime facie arise in favour of the petitioner. Article 13 of the Constitution and Section 403 Cr.P.C. and the judgment cited at bar do not support the petitioner, therefore, the judgments cited at bar titled “Muhammad Ikram and others vs. The State” reported as PLD 1965 (W.P.) Lahore 461, case titled “Mst. Ramzan Bibi and another vs. Hakim Muzaffar Hussain” reported as PLD 1967 Lahore 186, case titled “Ramesh Maudeshi vs. The State”reported as 2002 P.Cr.L.J. 1712, case titled “Ch. Tanveer Khan vs. Chairman, National Accountability Bureau and others” reported as PLD 2002 SC 572, case titled “Badar Alam Bachani vs. The State through Chairman NAB and another” reported as 2010 P.Cr.L.J. 1988, case titled “Brig. ® Karrar Ali Agha vs. National Accountability Court No. II, Lahore and another” reported as PLJ 2010 Lahore 78 (DB), case titled “Noorshad vs. Chairman National Accountability Bureau and 5 others” reported as 2017 P.Cr.L.J. 1258 will not be attracted to the present case.

16. Likewise, the other argument raised from the petitioner’s side is that at the time of incorporation of M/S. CSML in the year 1981, the petitioner was a minor, therefore, she cannot be held responsible for any such transaction but this argument cannot be appreciated at this stage for the simple reason that allegations against her pertain to year 2008 and onward when she was not only major but also shareholder with increased shareholding in M/S. CSML.

17. However, as far as the ownership of share of Nasser Abdullah Hussain Lootah, a UAE national is concerned, the official record pertaining to SECP does not show that he was not the shareholder, therefore, ipso facto his denial of this fact mentioned in Form A dated 10.02.2012 needs further probe since correction of this record require some procedure to be adopted by him, which we have not noticed in the present case. Besides, presumption of truth is attached to the Form A as held in case titled “Waseem Yaqoob vs. Chief Commissioner, Income Tax, Lahore and 2 others” reported as 2012 PTD 1883. The relevant extract is reproduced as under:--

“In the instant case it has done so and accordingly, the Company filed the Form A for the year 1997. Furthermore, Section 155 of the C O 1984 provides that the registers referred to in Section 156 shall be prima facie evidence of the matters contained therein. Section 156(4) provides that all the particulars to be submitted under Section 156(1) and (2) shall have been entered in the register maintained with the company. Reading both these sections together means that the Form A is prima facie evidence of the matters contained therein and if the respondents refute or deny the information then, it should be through cogent evidence supporting their stance.”

Importantly, he has admitted before the NAB that he sent the money out of the investment made by the petitioner’s family in real estate on their instructions back to them though he does not own any share in M/S. CSML. In our considered view, the petitioner has prima facie shown her money trail linked to the said foreigners, leaving the prosecution to further probe into the matter of the allegation against the petitioner. We were informed that Mr. Lootah had made a statement on 03.08.2019, photocopy of which was neither certified nor notarized by foreign office. However, a statement was recorded under Section 164 Cr.P.C. before the Court of Waseem Ahmed Khan, Additional District Magistrate, Islamabad on 05.08.2019, repeating the said statement, in the absence of the petitioner and her learned counsel without permitting the right to cross-examine, therefore, its effect may be considered by the trial Court after recording of evidence. Besides, the fact of TT US$ 4.885 Million sent to Yousaf Abbas Sharif’s account in Pakistan as a profit/investment from real estate made by the family of the petitioner would shift the onus back to the prosecution to prove it as a dubious transaction. Importantly, statements of other three foreigners namely, Saeed Saif Bin Jabar Al-Suweidi, Sh. Zaka-ud-Din and Hani Ahmed Jamjoom, have not so far been recorded by the prosecution who were also mentioned as shareholder vide Form A dated 21.05.2008, therefore, calling for further probe into the guilt of the petitioner. In case titled “Abdul Aziz Memon and others vs. The State and others” reported as PLD 2013 SC 594, it was held that even the foreign officer making transaction with the holder of public office may be come accused and falling in any category of “accused persons” but in the present case such foreigners were not cited as accused persons.

18. Besides, in “Abdul Hameed Dogar vs. Federal Government through Secretary, Ministry of Interior and 2 others” reported as PLD 2016 SC 454, it has been held that there is a difference between an aider/abettor and a beneficiary as the former abets or aids with another who is a privy to the acts itself but a beneficiary takes the benefit or advantage of the said act after the event. In the present case, as already discussed above, it has not come on record that the petitioner had in any manner aided, abetted to persuade the foreign nationals to send their money into M/s. CSML account. The relevant extract of the judgment at page 461 is reproduced as under:--

“The difference between an aider/abettor and a beneficiary is quite obvious. A person aiding or abetting another in an act is privy to the act itself but a beneficiary takes benefit or advantage of the act after the event and he may not necessarily be a party to the act itself.”

19. Here a reference can also be given to case titled “Asif Ali Zardari vs. The State and another” reported as 1992 P.Cr.L.J. 58, passed by the Division Bench of Hon’ble Sindh High Court in which the offence of abetment was explained with reference to its ingredients which shows the elements of mens rea as sine qua non for the constitution of the said offence. The relevant extract from page 70 is reproduced as under:--

“The offence of abetment has been defined by Section 107 of the Pakistan Penal Code. The definition shows in the first instance, that a person abets the doing of a thing who instigates any person to do that thing . Secondly, a person is also said to abet the doing of a thing who engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing’. Thirdly, a person is said to abet the doing of a thing if he intentionally aids, by any act or illegal omission, the doing of that thing’. In Ballentine’s Law Dictionary the word instigate has been defined to mean ‘to stimulate or goad to an action, specially a bad act, to incite, to foment, specially the commission of a crime’. The same word has also been defined by Black’s Law Dictionary as ‘to stimulate or goad to an action, specially a bad action’. ‘Instigation’ has been defined by the same Dictionary to mean as ‘incitation, urging, solicitation. The act by which one incites, another to do something, as to commit some crime or to commence a suit’.”

“We would like to point out that, as is evident from the definition of abetment contained in Section 107, Cr.P.C. mens rea would be an essential ingredient of the said offence. Maxwell on the Interpretation of Statutes (12th Edn.) at page 123 observes: ‘where an offence is created by Statute, however comprehensive and unqualified the language of the Statute, it is usually understood as silently requiring that the element of mens rea should be imported into the definition of the crime, unless a contrary intention is expressed or implied’. The definition of abetment in Section 107, P.P.C. relates to instigation, conspiracy and intentional aiding. An element of criminality must, therefore, be clearly spelt out before a person can be indicted for abetment.”

20. On the question of assets beyond means, in case titled “Ghani-ur-Rehman vs. National Accountability Bureau and others” reported as PLD 2011 SC 1144, it has been held that mere possession of any pecuniary resources of property is not an offence but its failure to satisfactorily account for such possession of pecuniary resources of property that makes the possession objectionable and constitute the relevant offence. This view has already been adopted by this Court in case titled “Brig. ® Imtiaz Ahmad vs. The State” reported as PLD 2017 Lahore 23 for assets beyond means which has been upheld by the Hon’ble Supreme Court of Pakistan. The observations of their lordships read as under:--

“To cater the situation we have been guided again by the Supreme Court of Pakistan in Ghani-ur-Rehman v. National Accountability Bureau and others (PLD 2011 Supreme Court1144), wherein it was held that the prosecution must bring on record the misuse of authority of the public servant to show that the assets built by him is disproportionate to the known source of income. Relevant extract of said judgment is reproduced as under:--

“The law now stands settled that in order to prove commission of an offence under Section 9(a)(v) of the National Accountability Ordinance, 1999 it has to be proved by the prosecution as to what were the known sources of income of the accused person at the relevant time and that the resources or property of the accused person were disproportionate to his known sources of income and it is after such proof has been led and the necessary details have been provided by the prosecution that the onus shifts to the accused person to account for such resources or property because mere possession of any pecuniary resource or property is by itself not an offence but it is failure to satisfactorily to account for such possession of pecuniary resource or property that makes the possession objectionable and constitutes the relevant offence. In the case in hand the appellant’s sources of income had never been brought on the record by the prosecution and had never been quantified by it at any stage of this case and, therefore, it was not possible for the learned trial Court to conclude or to hold that the appellant or his dependants or so-called benamidars owned or possessed assets or pecuniary resources disproportionate to the appellant’s income. It is unfortunate that the investigating officer of this case as well as those responsible for prosecution of this case before the learned trial Courthad, probably on account of their sheer incompetence, utterly failed to do the needful in this regard and it is regrettable that even the learned trial Courtas well as the learned appellate Court had completely failed to advert to this critical aspect of the present case.”

1. As far as Section 3 of Anti-Money Laundering Act, 2010 is concerned, it will be expedient to reproduce the same:--

“3. Offence of money laundering.--A person shall be guilty of offence of money laundering, if the person:--

(a) acquires, converts, possesses, uses or transfers property, knowing or having reason to believe that such property is proceeds of crime; (b) conceals or disguises the true nature, origin, location, disposition, movement or ownership of property, knowing or having reason to believe that such property is proceeds of crime; (c) holds or possesses on behalf of any other person any property knowing or having reason to believe that such property is proceeds of crime; or (d) participates in, associates, conspires to commit, attempts to commit, aids, abets, facilitates, or counsels the commission of the acts specified in clauses (a), (b) and (c). Explanation-I.— The knowledge, intent or purpose required as an element of an offence set forth in this section may be inferred from factual circumstances in accordance with the Qanun-e-Shahadat Order, 1984 (P.O. 10 of 1984). Explanation II.- For the purposes of proving an offence under this section, the conviction of an accused for the respective predicate offence shall not be required.”

Perusal of said Section reveals that there has to be some nexus with the crime proceeds and, therefore, it pre-supposes that some crime had been committed. According to the learned Prosecutor, the offence under NAO, 1999 is an “intended” crime, therefore, to attract the ingredients of this Section, further investigation will be required. In case titled “Syed Mushahid Shah and others vs. Federal Investment Agency and others” reported as 2017 SCMR 1218, it has been held that in case of conflict between two special laws containing over riding clauses, the later-in-time would prevail over the statute prior in time but this is not automatic instead a host of other factors will be attracted. Obviously, AMLA 2010 is later in time which attracts lesser punishment, therefore, it would be interesting discussion before the trial Court on this aspect.

1. The question of making layers and becoming beneficial also requires further probe since it is not the prosecution case that investments in the real estate in UAE was out of some crime proceeds in the form of ill-gotten money. It is also not the prosecution case that said money coming from UAE was black money having origin from some crime proceeds of internationally recognized crimes like terrorism, etc. Undoubtedly, attracting foreign investment has always been a perennial demand of every government and all governments would dream of it but great hurdles were always faced by them to make it a reality.

23. We have been shown the bank statement of Account No. 0149056661004053 in the name of petitioner in which transaction of Rs. 41,06,6200 and Rs. 28,933800 were made in the month of November, 2011 and a sum of about seven crores rupees were withdrawn in the same month by the petitioner but on the face of it, it does not help out the prosecution for the simple reason that it is not the prosecution case that M/S. CSML was bankrupt or was in loss, therefore, no money could be withdrawn by shareholder/CEO. However, this aspect of the matter can be probed by the NAB. It was held by this Court in case titled “Dr. Asghar Ali vs. The State and another” reported as 2016 P.Cr.L.J. 193 that the benefit of any such transaction should be clear and visibly established and should not be shrouded in mystery. The withdrawal of amount of Rs. 7 crore as alleged by the NAB, cannot be termed as illegal gotten money or an asset beyond known source of income since prima-facie the source of money was shown in the official record of the M/s. CSML with Reference to foreign investment.

24. The judgments cited by the prosecution as case titled “Tallat Ishaq vs. National Accountability Bureau through Chairman, and others” reported as PLD 2019 SC 112, does not totally oust the jurisdiction of this Court under Article 199 of the Constitution for the simple reason that the constitutional jurisdiction which is always attracted where there is absence of alternate and efficacious remedy. However, besides considering the hardship of the case, merits of the case will always be taken into consideration at the time of deciding of bail application. It is true that corruption and corrupt practices are rampant in our society, therefore, needed to be curbed with iron hands but at the same time, this Court cannot keep its eyes off the legal proposition that bail cannot be withheld as a punishment since this Court would otherwise transgress into the power of the trial Court to return its finding upon guilt on the basis of evidence. In case titled “Abdul Aziz Khan Niazi vs. The State through Chairman NAB, Islamabad” reported as PLD 2003 SC 668, it was held that the ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of (woman) bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. The relevant extract is reproduced as under:--

“6. The grant of bail in Constitutional jurisdiction by thigh Court is entirely discretionary but there can be no deviation to the rule that discretion should not be exercised in violation of recognized principles of justice and if it is exercised only on the basis of presumption, inference, suspicion or bare allegation, it would defeat the very purpose of discretion. The High Court, in exercise of its discretion, should not proceed in departure to the recognized principles and in case such an error is committed, the Supreme Courtis always empowered to interfere in the matter in the interest of complete justice. The law does not permit to detain the people in jail only on the basis of presumption and suspicion of commission of criminal acts, therefore, it is the duty of Court to administer the justice, prevent the abuse of law and protect the liberty of people. The High Court while considering the question of bail in its Constitutional jurisdiction can examine the nature of allegation on the basis of tentative assessment of the evidence in the hands of prosecution to ascertain prima facie, the question of guilt or innocence of an accused for the purpose of grant or refusal of bail and without expressing on the merits of the case, lest it should prejudice the accused or prosecution, should exercise discretionary jurisdiction in the interest of administration of justice. This is settled law that bail cannot be claimed as a matter of right but there can also be no departure to the rule that bail in non-bailable offences should not be withheld as punishment, therefore, the High Courtwhile dealing with the question of bail in its Constitutional jurisdiction must consider it carefully and weighed in the scale of justice. The reasonableness of the grounds for withholding the bail to person accused of a non-bailable offence must be shown through the material and merely a suspicion may be sufficiently strong, is not enough to refuse the bail. There can be no cavil to the position that the High Court may or may not interfere in a matter in its discretionary jurisdiction but refusal to interfere must not offend the spirit of law and cause of justice as the object of exercise of discretionary jurisdiction is always to foster the justice, preserve the rights and protect the liberties. This Court in Manzoor and 4 other v. State (PLD 1972 SC 81) held as under:--

“It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.”

This judgment, with utmost respects of the Hon’ble Supreme Court, was neither discussed nor referred in Tallat Ishaq’s case.

25. Besides, this Court in W.P.No. 42682-2019 titled “Muhammad Sabtain Khan vs. National Accountability Bureau, etc.” and W.P.No. 581-2019 titled “Hafiz Mian Muhammad Nauman vs. Director General NAB etc.”, has decided that in appropriate cases the constitutional jurisdiction in respect of the grant of bail can be exercised and, therefore, fully attracted in the present case.

1. The petitioner had also filed an application for the interim bail so as to see her ailing father already hospitalized in which we have been informed by the State that she is accompany her father in the hospital to look after his health, therefore, prayer to the extent of grant of interim bail has not been pressed by the learned counsel for the petitioner.

27. The petitioner also seeks bail on the ground that she is a woman and refers to the judgment given in case titled “Miss Shahla Raza vs. The State” reported as 1991 MLD 1814 and case titled “Mst.Afsar Bibi vs. The State” reported as 2005 P.Cr.L.J. 164, in which it was held that grant of bail to a woman is also discretionary but the Courts have always been leaned towards such exercise, therefore, grant of bail to a woman should be a rule and discretion must be exercised in her favour in the absence of compelling circumstances disentitling her to the grant of bail. In the present case the exceptional circumstances do not appear to attract in favour of the prosecution, since she has neither absconded nor obstructed the process of law. A reference may also be given to case titled “Zohra Khanum vs. The State” reported as 2009 SCMR 751 in which the Hon’ble Supreme Court of Pakistan has held that showing the common intention/abetment by a woman even in a murder case required further probe, therefore, the bail was granted. Besides, in the judgment titled “Chairman, National Accountability Bureau, Islamabad through Prosecutor General Accountability, Islamabad vs. Mian Muhammad Nawaz Sharif and 2 others” reported as PLD 2019 SC 445 it was already observed that the petitioner being a woman was rightly granted to concession of bail. Relevant extract of para 6 is reproduced as under:-

“One of the said respondents is already in ail after having been convicted and sentenced in connection with another criminal case, another of the said respondents is a woman and the law envisages concession for her in the matter of bail and the sentence of imprisonment passed by the trial Court against yet another of the said respondents was quite short.”

1. Since the prosecution has shown the bank statement of the account No. 0149056661004053 of the petitioner in which on 28.11.2011 vide Cheque No. 39438534, Rs. 7 crores were withdrawn and the prosecution has apprehension of fleeing away of the petitioner, therefore, to satisfy our judicial conscience we would pass a conditional order.

2. Keeping in view the above discussion and the case law cited by the respective parties, while exercising the constitutional

jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, we allow this petition and admit the petitioner to post arrest bail subject to furnishing of surety bonds in the sum of Rs. 10 Millions with two sureties each in the like amount to the satisfaction of the learned trial Court and to establish her bonafide would also deposit amount of Rs. 7 crore with the Deputy Registrar (Judicial) of this Court besides submitting her passport(s) with him.

(K.Q.B.) Petition Allowed

PLJ 2020 Lahore 43 (DB)[Multan Bench Multan]

Present: Mujahid Mustaqeem Ahmed and Anwaarul Haq Pannun, JJ.

MUHAMMAD IDREES--Petitioner

versus

SPECIAL JUDGE, ANTI-TERRORISM COURT and others--Respondents

W.P. No. 15442 of 2018, decided on 19.11.2018.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Pakistan Penal Code (XLV of 1860), Ss. 302, 324 & 34--Anti-Terrorism Act, (XXVII of 1997), Ss. 6(2)(m) 7 & 23--Application for addition of Section 7 ATA--Dismissed--Private motive--Attraction of provisions--Question of--Whether or not, instant occurrence attracts provisions of Section 7 of act rendering case to be cognizable by Anti-Terrorism Court--Challenge to--Provisions of sections 6(2)(n) of Act can only be attracted where a person belonging to Forces mentioned supra is targeted with violence while discharging his duties, performing his official functions or action complained of is designed with object of creating a sense of fear and insecurity, except in cases where propelling force behind occurrence is private motive--In order to attract provisions of Act, act complained of must have a serious nexus with provision of Section 6--To exercise jurisdiction under Act ibid, ‘design’ or ‘purpose’ behind action coupled with mens rea to constitute offence of terrorism is sine qua non but same has not been taken into consideration by learned Court below while deciding application of petitioner--There is also nothing on record to show that life and liberty of large number of persons in village was put in danger because of firing of accused party--In absence of solid and admissible evidence, mere conjectures and surmises, how so strong may be, cannot substitute reality--Occurrence had taken place as a result of private motive inter-se parties, hence, addition of Section 7 of Act in FIR and submission of challan before Anti-Terrorism Court is declared to be illegal and without lawful authority--Petition was allowed. [Pp. 46, 47 & 48] A, B & C

Sardar Mehboob Advocate for Petitioner.

Mr. Iftikhar-ul-Haq, Additional Prosecutor-General for Respondents.

Mr. Mudassir Altaf Qureshi, Advocate for Respondent No. 2.

Date of decided: 19.11.2018.

Order

Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the vires of order dated 08.10.2018, passed by the learned Judge, Anti-Terrorism Court-II, Multan (Respondent No. 1) whereby application filed by the petitioner under Section 23 of the Anti-Terrorism Act, 1997 (hereinafter to be referred as ‘the Act’) in case FIR No. 381 dated 16.06.2018, registered at Police Station Gaggo, District Vehari, for offences under sections 302, 324 and 34, P.P.C. read with Section 7 of the Act, stood dismissed.

1. Briefly stating, the facts of the case, leading to the filing of the instant writ petition are that Respondent No. 2 had lodged the aforesaid criminal case against the petitioner and others with the allegation that on 16.06.2018, at about 7:00 p.m., he along with his son namely Ali Raza, nephew Muhammad Nawaz and other relatives, was sitting on a ‘Thara’ in front of their house when the petitioner along with his co-accused, armed with fire arm weapons, came there, while making firing and creating panic in the area. Due to fear, they tried to rush to their house in order to save their lives but in the meanwhile, accused Shafiq made a fire shot with his pistol .30-bore at the chest of Muhammad Nawaz, who after receiving injury, fell down on the ground. Idrees (petitioner) made fire shot with his rifle which landed at the chest of his son Ali Raza who also fell down on the ground. The complainant and other PWs tried to rescue the injured persons but they succumbed to the injuries at the spot. Accused Qaiser made fire shot with his pistol .30-bore hitting Muhammad Ramzan at his little finger of right hand, Khalil inflicted Butt blows of his pistol to Allah Rakha causing injuries on his head.

The motive behind the occurrence has been stated to be a quarrel taken place between Muhammad Nawaz (deceased) and Qaiser accused during the cricket match at about 4:30 p.m., on the same day.

1. Learned counsel for the petitioner submits that bare reading of the FIR transpires that the occurrence has taken place on account of a private motive inter se the parties and the learned Special Judge Anti-Terrorism Court-II, Multan has failed in taking into consideration that there exist neither any circumstance nor any material available on the record for attracting Section 6 of the Act, hence the impugned order is not sustainable under the law. He prayed for acceptance of the writ petition while relying upon “Waris Ali and 5 others v. The State” (2017 SCMR 1572).

2. On the other hand, learned counsel appearing for Respondent No. 2 as well as learned Additional Prosecutor General have submitted that since one of the deceased namely Muhammad Nawaz was an army personnel, therefore, keeping in view the provision of sections 2(a) and 6(2)(n) of the Act, the impugned order has rightly been passed. Learned counsel for Respondent No. 2 has relied upon the cases reported as Province of Punjab through Secretary Punjab Public Prosecution Department and another v. Muhammad Rafique and others (PLD 2018 Supreme Court 178), Kashif Ali v. The Judge, Anti-Terrorism Court, No. 11, Lahore (PLD 2016 Supreme Court 951) and Mst. Raheela Nasreen v. The State and another (2002 SCMR 908) and has prayed for dismissal of the instant petition.

3. Arguments heard. Record perused.

4. The question, pithily, before us in the instant proceedings, requiring its determination, is whether or not, the instant occurrence attracts the provisions of Section 7 of the Act rendering the case to be cognizable by the Anti-Terrorism Court, in which murder of Muhammad Nawaz deceased, member of the Armed Forces, had taken place on account of private motive inter se the parties.

5. In order to appreciate the contentions raised at bar. It will be convenient to firstly reproduce the preamble and other relevant provisions of the Act which are as under:-

“An Act to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences.”

2(a). “armed forces” means the Military, Naval and Air Forces of Pakistan and the Reserves of such Forces.

(b) “Civil armed forces” means the Frontier Constabulary, Frontier Corps, Pakistan Coast Guards, Pakistan Rangers or any other civil armed force notified by the Federal Government as such.

6(2)(n).Involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant.”

1. The contention of learned counsel for Respondent No. 2 that since one of the deceased namely Muhammad Nawaz was a member of the Armed Forces, therefore, combine reading of sections 2(a), 2(b) and 6(2)(n) of the Act will bring the case of the prosecution, without any further qualifying factor, automatically within the cognizance of Anti-Terrorism Court, does not commensurate with the facts and circumstances of the instant case.

2. The Anti-Terrorism Act, 1997 was promulgated on 20th August 1997, as the legislation felt it expedient because the terrorist of different colours and creeds, backed by various inimical quarters, motivated by different ideologies, were desperately attacking not only the civilian populace but also the men in uniform, public servants and institutions creating a sense of fear, despair and insecurity amongst the public at large apart from degrading the image of the country abroad. It appears that intention of the legislature for enactment of the Act was to give clear message to the terrorists, hitting even the men in uniform, who were duly trained and equipped with sophisticated weapons to combat such nasty elements for internal and external security of the country, that they will be dealt with iron hand under the aforesaid provisions of the Act by the Anti-Terrorism Courts.

10. The law was supposed to work as a moral boosting factor not only for the civilians but also for the men in uniform, therefore, taking into consideration the facts and circumstances of the case, we have no hesitation to hold, while keeping in view the object of the Act expressed in the preamble, that the provisions of sections 6(2)(n) of the Act can only be attracted where a person belonging to the Forces mentioned supra is targeted with violence while discharging his duties, performing his official functions or the action complained of is designed with the object of creating a sense of fear and insecurity, except in the cases where the propelling force behind the occurrence is private motive.

1. The august Supreme Court, in case Waris Ali (supra), while discussing the same question, has held as under:

“24. True, that in Section 6 read with Section 7 of the Special Act, offences of murder, attempted murder or causing bodily hurt or injury have been made cognizable by the Special Court, however, from the qualifying words, preceding the description of offences under sub-section (1) of Section 6 read with the provisions of Section 7 the intention of the legislature becomes perceivable/visible that in committing these crimes essentially the element of “terrorism” shall be persuasive factor however other category of crimes duly specified and listed in Special Act shall fall within the ambit of provision of same being act of terrorism in that regard. The manifest intent of the Legislature does not leave behind any doubt for debate.”

12. Bare perusal of the FIR shows that the complainant has set up his case with the narration that the motive behind the occurrence was a quarrel, taken place earlier at 4:30 p.m., between deceased Muhammad Nawaz and accused Qaiser during the cricket match on the same day. Therefore, we feel no difficulty in concluding that the main occurrence, which took place at 7:00 p.m., was sequel of the motive which had taken place 2-1/2 hours before due to personal grudge nourished in the mind of Qaiser, who had allegedly persuaded his co-accused, to commit the crime, in furtherance of their common intention i.e. to avenge the quarrel. No other inference regarding the cause of murder can be drawn in the circumstances of this case. Even during investigation, nothing adverse has come on the surface of record. We are of the opinion that in order to attract the provisions of the Act, the act complained of must have a serious nexus with the provision of Section 6. To exercise the jurisdiction under the Act ibid, ‘design’ or ‘purpose’ behind the action coupled with mens rea to constitute the offence of terrorism is sine qua non but the same has not been taken into consideration by the learned Court below while deciding the application of the petitioner. There is also nothing on record to show that life and liberty of large number of persons in the village was put in danger because of the firing of the accused party. In absence of solid and admissible evidence, mere conjectures and surmises, how so strong may be cannot substitute the reality.

1. In a judgment passed by learned Division Bench of this Court reported as Nazim Khan v. Special Judge, Anti-Terrorism Court (2002 MLD 1433), it has been held as under:--

“--incident having sparked off over a triviality bearing no nexus with the discharge of the official duty being the sine qua non in the contest of things for assumption of jurisdiction by the Special Court constituted under the Anti-Terrorism Act, 1997 in terms of Section 6 read with Section 2(e) ibid....”

Similar view has been taken in case Muhammad Riaz v. Mian Khadim Hussain, Additional Sessions Judge, Mianwali and 11 others (2002 YLR 203) Lahore (Full Bench Judgment).

14. In the instant case, as observed above, the occurrence had taken place as a result of private motive inter-se the parties, hence, addition of Section 7 of the Act in the FIR and submission of challan before the Anti-Terrorism Court is declared to be illegal and without lawful authority.

1. In view of what has been discussed above, the instant petition is allowed, impugned order dated 08.10.2018 is set aside, the application of the petitioner moved under Section 23 of the Act is accepted and addition of aforesaid Section is declared to be illegal, improper and of no legal effect. Learned Special Judge Anti-Terrorism Court-II, Multan is directed to transfer the record of the aforesaid case to the Court of ordinary jurisdiction for further proceedings in accordance with law.

(Y.A.) Petition Allowed

PLJ 2020 Lahore 48[Multan Bench Multan]

Present: Shahid Bilal Hassan, J.

RASHEED KHAN (deceased) through L.Rs. and others--Petitioners

versus

Mst. AALAM (deceased) through L.Rs. and others--Respondents

C.R. No. 115-D of 1999, decided on 8.4.2019.

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

----S. 115--Suit for possession--Dismissed--Appeal--Accepted--Case was remanded--Civil revision--Accepted--Case was remanded to trial Court--Appeal was partly accepted--Entitlement of possession--Consistency between findings--Challenge to--Petitioners-defendants could not bring on record any cogent evidence with regards to fact that Syed Qutub Ali Shah sold out his share of property to lessees, as no sale deed with regards to above said fact was brought on record and only contents of Ex.D2 were referred by learned counsel for petitioners, which were not sufficient to prove factum of selling out of property owned by Sycd Qutub Ali Shah--Apart from this, petitioners, though produced a letter written by a person from India that Syed Qutub Ali Shah had also sold his share, but said letter could not be relied upon as it was not a sufficient proof that share of Syed Qutub Ali Shah was purchased by Hindus before partition and same was later on declared as evacuee property--Appellate Court and by evaluating evidence on record in a minute manner learned appellate Court has rightly adjudged lis in hand and has rightly held respondents entitled to have possession of one kanal and 15 marlas of disputed land--It is settled proposition of law that in case of inconsistency between findings learned trial Court and learned Appellate Court, findings of latter must be given preference in absence of any cogent reason to contrary--There appears no illegality and irregularity as well as wrong exercise of vested jurisdiction allegedly to have been committed by learned appellate Court while passing impugned judgment and decree warranting interference by this Court in exercise of revisional jurisdiction--Civil revision was dismissed.

[Pp. 50 & 51] A, B, C & D

PLJ 1975 Lahore 298, 1993 SCMR 21, 2015 SCMR 1, 2013 SCMR 1300 and 1969 SC 617 ref.

Mr. Habib-ur-Rehman Thaheem, Advocate for Petitioners.

Barrister Rehan Khalid Joiya, Advocate for Respondents.

Date of hearing: 8.4.2019.

Judgment

Succinctly, the respondents-plaintiffs instituted a suit for possession against the present petitioners wherein it was maintained that they were owners of the property as mentioned in the head note of the plaint and they were entitled to get its possession. As per averment of the plaint, the property in dispute was leased out in the year 1932 by Syed Hazoor Bakhsh Shah and Syed Qutub Ali Shah, the predecessor-in-interest of the respondents-plaintiffs, for the construction of a factory and the said lease for a fixed period of 20 years. The possession was delivered to the lessees and they made construction on it. The possession was to be restored uptill 14.06.1952 and the debris on the disputed property was deemed to be property of the lessees. The lease ended after 14.07.1952 and the same was incorporated in the revenue record, but the Defendants No. 1 to 4 got illegal possession of the disputed property in the year 1969 and started construction which resulted into the institution of the suit, which was, withdrawn with permission to file a fresh suit subject to payment of costs. It was averred that the property in dispute could not be declared as evacuee property because the same belonged to the Muslim owners and its status quo could not be changed due to lease. The construction made on the disputed property, only belonged to evacuee and the ownership of the disputed property still vested with the persons who leased out the property.

The suit was resisted by the rival parties while submitting written statement. Out of the divergent pleadings of the parties, issues were framed by the learned trial Court and evidence of the parties, oral as well as documentary, was recorded. The learned trial Court vide judgment and decree dated 01.03.1995 dismissed suit of the respondents-plaintiffs. They preferred an appeal against the said judgment and decree and the learned appellate Court vide judgment and decree dated 27.10.1996 accepted the appeal and remanded the ease to the learned trial Court for decision afresh, but the rival party called into question the said remand order in C.R,No. 15-D-97 before this Court and vide order dated 13.04.1998, the remand order was set aside and case was remanded to the learned appellate Court for decision of appeal afresh. The learned appellate Court, after remand, vide impugned judgment and decree dated 20.02.1999 partly accepted the appeal and decreed suit of the respondents-plaintiffs to the extent of one kanal and 15 marlas, owned by Syed Qutub Ali Shah; hence, the instant civil revision.

1. Heard.

3. The petitioners-defendants could not bring on record any cogent evidence with regards to the fact that Syed Qutub Ali Shah sold out his share of property to the lessees, as no sale deed with regards to the above said fact was brought on. record and only contents of Ex.D2 were referred by learned counsel for the petitioners, which were not sufficient to prove the factum of selling out of property owned by Sycd Qutub Ali Shah. Apart from the this, the petitioners, though produced a letter written by a person from India that Syed Qutub Ali Shah had also sold his share, but said letter could not be relied upon as it was not a sufficient proof that the share of Syed Qutub Ali Shah was purchased by Hindus before partition and the same was later on declared as evacuee property. Moreover, the Additional Commissioner (Consolidation), Multan/D.G.Khan Division passed an order (Ex.Pl), which goes to evince that the land one kanal and 15 marlas was not mortgaged property and it was held to be the property Mst, Alam Bibi daughter of Syed Qutub Ali Shah and others and that order hold field; thus, the learned appellate Court was right in observing that, ... In fact Jind Wadda Shah was the person who sold his share after 13/14 years of the execution of lease deed in favour of Hindues, as is evident by Ex.D.2. Since Mst. Alam Bibi daughter of Syed Qutub Ali Shah is also a widow of Jind Wadda Shah, it was misconceived by the respondents that she could not claim the ownership of the property which was sold, by her husband, i.e. Syed Jind Wadda Shah. She has not claimed, the share of her husband, but she has claimed her share as a daughter of Syed Qutub Ali Shah, who admittedly never sold his property and due to wrong entries in the revenue record that property was shown as evacuee property and onwards transferred to the respondents treating it as an evacuee property.'

The ratio of case law reported as PLJ 1975 Lahore 298 and 1993 SCMR 21 have also rightly been followed by the learned appellate Court and by evaluating evidence on record in a minute manner the learned appellate Court has rightly adjudged the lis in hand and has rightly held the respondents entitled to have possession of one kanal and 15 marlas of disputed land.

4. In addition to the above, it is settled proposition of law that in case of inconsistency between the findings the learned trial Court and the learned Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary. Reliance is placed on Amjad Ikram v. Mst. Asiya Kansar and 2 others (2015 SCMR 1), Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) and Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs. and others (2013 SCMR 1300).

5. For the foregoing reasons, there appears no illegality and irregularity as well as wrong exercise of vested jurisdiction allegedly to have been committed by the learned appellate Court while passing the impugned judgment and decree warranting interference by this Court in exercise of revisional jurisdiction. Resultantly, the civil revision in hand having no force and substance stands dismissed. No order as to the costs.

(Y.A.) Civil Revision dismissed

PLJ 2020 Lahore 56

[Rawalpindi Bench Rawalpindi]

Present: Mirza Viqas Rauf, J.

HUSNAIN INAM--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence, Pak Secretariat No. II and 3 others--Respondents

W.P. No. 3739 of 2019, heard on 9.1.2020.

Constitution of Pakistan, 1973--

----Arts. 199(1)(b)(i), 2(1)(d) & 3--Pakistan Army Act, 1952, Ss. 59 & 73--Writ petition of habeas corpus--Father of petitioner was took away by law enforcing agencies--Retired army officer--Allegations of--Right of liberty--Fundamental right--Unlawful jurisdiction--Maintainability of writ petition--Challenge to--It is even otherwise bounden duty of this Court, being custodian of fundamental rights of citizens to examine question relating to curtailment of their liberty, with vigor and due care as right of liberty of a person is one of valuable fundamental rights guaranteed under Article 9 of “Constitution”--If in opinion of Respondent No. 1, alleged detenue was an accused of offences under “Act, 1923”, he may have a resort to provisions contemplated in “Act, 1923” and then to Section 549 of Code of Criminal Procedure, 1898 seeking his delivery to Military Authorities to be tried by Court martial--It is by now well settled principles of law that whenever order/action impugned is without jurisdiction, malafide or coram non judice, bar under Article 199(3) of “Constitution” would not be attracted--Impugned action of Army Authorities of taking into custody Mr. Inam-ul-Rahiem, Advocate is not only without lawful jurisdiction but is clearly tainted with malafide as spelled out from facts of instant case mentioned in preceding paragraph No. 2 as they have made all endeavor to withhold factum of detention from Court--Petition was accepted.

[Pp. 63, 72 & 73] A, F & G

Pakistan Army Act, 1952 (XXXIX of 1952)--

----Ss. 59 & 73--Scope and mandate of--Military custody--Section 2(1)(d) of “Act, 1952” is neither a penal clause nor it creates any offence against said Act. [P. 64] B

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Army Act, 1952, S. 2(1)(d)--After having an overview of principles laid down in above cited judgments, it can safely be inferred that a person cannot be said to be “accused” in order to bring him within mischief of “Act, 1952” unless Military Authorities have found out a prima facie case against him, and have formally charged him--Until that stage is reached, a person, if not ordinarily subject to Act, cannot be held to be an accused and thereby made subject to Act. [P. 68] C

Official Secrets Act, 1923--

----Ss. 11 & 23--Arrest of a person--A person accused of an offence under “Act, 1923” can only be arrested as contemplated in Section 11 thereof. [P. 70] D

Official Secrets Act, 1923--

----S. 2(8)--Arrest without orders--Any member of Armed Forces of Pakistan can only arrest a person without any formal order from Magistrate and without a warrant in or in vicinity of a prohibited place. [P. 71] E

Mr. Muhammad Wasif Khan, Advocate for Petitioner.

M/s. Sajid Ilyas Bhatti, Additional Attorney General and Malik Ahtesham Saleem, Assistant Attorney General for Pakistan alongwith Brigadier Falak Naz, Director (Legal), Ministry of Defence and Khalid Abbas Bhatti, Law Officer for Respondents No. 1 & 2.

Mirza Asif Abbas, Assistant Advocate General for Punjab alongwith Syed Ali, Superintendent of Police, Potohar and Aizaz Azeem, Station House Officer, Morgah for Respondents Nos. 3 & 4.

Date of hearing: 09.01.2020.

Judgment

The petitioner namely Husnain Inam is son of Mr. Inam-ul-Rahiem, Advocate, who is a practicing lawyer. As per contents of the petition, on night of 16/17 December, 2019 at about 12:30 am about eight to ten armed personnel clad in black uniform entered into the house of the petitioner situated at Sector-A, Askari-XIV, Adyala Road Rawalpindi. They forcibly took away the father of the petitioner without any clue and while leaving the premises extended threats to the petitioner of dire consequences. It is noteworthy that the alleged detenue was previously serving in Pakistan Army and he got retired being Lieutenant Colonel in the year 2007.

1. This petition is moved under Article 199(1)(b)(i) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred as “Constitution”) arraying Ministry of Defence interior, Govt. of Pakistan and Provincial Police Department, seeking production of the alleged detenue and a declaration that his custody is illegal and unlawful. On the presentation of the petition by way of order dated 18th December, 2019 when one of the law officers on behalf of the Federation appeared by his own, he was directed to ask the respondents to file reply/comments within two days. On the next date, on behalf of Respondents No. 1 & 2 a letter dated 18th December, 2019 was placed on record, whereby the relevant agencies were asked to furnish information about the alleged detenue. The Respondents No. 3 & 4, on the other hand, have taken the stance that regarding the alleged occurrence FIR No. 542 dated 20th December, 2019 under Section 365 of the Pakistan Penal Code, 1860 has already been got registered at Police Station Morgah, District Rawalpindi. The Respondents No. 1 & 2, however, sought time to file report and parawise comments. While affording them an opportunity, they were directed not to linger on the matter and immediately consult all the relevant quarters and furnish information to the Court. It was also observed that if the stance of the said respondents is that they have no information or clue of the person in question, then the same should be supported with duly sworn affidavits of the concerned quarters. The Regional Police Officer, Rawalpindi was also directed to supervise the proceedings carried out in furtherance of FIR registered to this effect. On the adjourned date i.e. 23rd December, 2019 on behalf of Respondent No. 2 a reply was submitted alongwith an affidavit of one Shahzad Anjum, Section Officer with the contention that relevant agencies i.e. Federal Investigation Agency (F.I.A), Pakistan Rangers and Islamabad Police have informed that the alleged missing person namely Lieutenant Colonel (Retired) Inam-ul-Rahiem, Advocate has neither been arrested nor detained by anyone of them. It was apprised by the Regional Police Officer, Rawalpindi that a team has been though constituted to recover the alleged missing person but till date there is no clue about him, however, efforts are underway. He was, however, directed to gain information from Counter Terrorism Department (CTD) and secure footage of Closed-Circuit Television (CCTV) cameras installed in the society and if any damage to the said footage has been caused, then the concerned may be taken to legal task. On the contrary, learned Additional Attorney General, while making reference to Letter No. 02/217/Dir (Legal)/19 dated 23rd December, 2019 submitted that Inter-Services Intelligence (ISI), Military Intelligence (MI) and Intelligence Bureau (IB) have also been asked to make reports/information about the matter in question. He sought time for the purpose of submission of report of the said departments alongwith affidavits of the concerned to that effect. It was then directed that reports of the above said departments of the Federal Government, supported with affidavits, be fetched and filed in the Court till the next date of hearing. On 26th December, 2019 a fresh report was submitted by the Regional Police Office, Rawalpindi wherein he mentioned that Lieutenant Colonel (Retired) Inam-ul-Rahim, Advocate was abducted from Askari-XIV, Housing Scheme, Rawalpindi and concerned officials of the said housing scheme are not handing over the Closed-Circuit Television (CCTV) camera’s footage and other relevant record to the police without permission from the concerned quarters (Army Officers). Since at the relevant time, Brigadier Falak Naz, Director (Legal) of the Ministry of Defence was in attendance, so he was directed to immediately establish contact with the relevant quarters for handing over Closed-Circuit Television (CCTV) camera’s footage and other relevant record to the police well before the next date of hearing. He was further directed to positively furnish the reports coupled with the affidavits of all the concerned departments i.e. Inter-Services Intelligence (ISI), Military Intelligence (MI) and Intelligence Bureau (IB) regarding the matter in issue on or before the next date and for the said purpose last opportunity was granted. Finally on 02nd January, 2020 through a report dated 30th December, 2019 it was apprised that Lieutenant Colonel (Retired) Inam-ul-Rahiem, Advocate has been taken into Military Custody under the provisions of Section 2(1)(d) read with Sections 59 and 73 of the Pakistan Army Act, 1952 (hereinafter referred as “Act, 1952”) and the Official Secrets Act, 1923 (hereinafter referred as “Act, 1923”) and at present he is under investigation in the light of said provisions of law. In view of this development and after hearing respective contentions of both the sides, petition was admitted for regular hearing by way of order dated 03rd January, 2020 and matter was set for final hearing.

2. Mr. Muhammad Wasif Khan, Advocate, learned counsel for the petitioner contended that proceedings for taking into custody the alleged detenue has been initiated in the garb of Section 2(1)(d) of “Act, 1952”. He added that impugned action is illegal and unlawful on the ground that mere receipt of information or arrest on account thereof, would not mean that the alleged detenue has become an accused under the said provision of law. It is contended that unless a person, whose custody is sought is an accused, he cannot be treated subject to “Act, 1952”. It is emphatically argued that though the alleged detenue was taken into custody on the allegations of commission of an offence under the “Act, 1923” but mandatory provisions contained therein have completely been ignored. Learned counsel further added that there is a clear distinction between person subject to the Act and the person, who otherwise not subject to the Act but has been made subject of the Act in terms of clause (d) of Section 2(1) of “Act, 1952”. Learned counsel emphasized that the impugned action is tainted with malafide and coram non judice. It is contended with vehemence that on above account bar in terms of Article 199(3) of “Constitution” cannot be pleaded in the way of this petition. In order to supplement his contentions, learned counsel placed reliance on “Brig. (Retd.) F.B. Ali and another versus The State” (PLD 1975 Supreme Court 506), “Saifud Din Saif versus Federation of Pakistan and 3 others” (PLD 1977 Lahore 1174) and “Syed Muhammad Anwar Shohrat Bokhari versus Federation of Pakistan and 3 others” (PLD 1981 Lahore 742).

3. Conversely, Mr. Sajid Ilyas Bhatti, Additional Attorney General for Pakistan, while referring Section 2(1)(d) of “Act, 1952” submitted that Mr. Inam-ul-Rahiem, Advocate has been taken into custody as per mandate of Section 73 of the Act ibid. He added that in terms of Rule 13 of the Pakistan Army Act Rules, 1954, Commanding Officer is vested with the power to proceed against the accused in custody on the basis of commission of an offence under the “Act, 1923”. It is submitted that there are serious allegations against the alleged detenue that he has violated the provisions of “Act, 1923” which made him liable to be proceeded under Section 59 of “Act, 1952”. Learned law officer contended that there is no legal impediment for the Army Authorities to take into custody a person, who is accused of an offence defined in the “Act, 1923”. Learned law officer emphatically contended that the alleged detenue is an accused, who is a subject of the “Act, 1952” and as such this petition is not maintainable in view of specific bar under Article 199(3) of “Constitution”. It is also one of the contentions of learned law officer that the instant petition was filed as habeas corpus and when the alleged detenue is in the legal custody of the Army Authorities, it has become infructuous. In support of his contentions, learned law officer has relied upon “Mushtaq Ahmed and others versus Secretary, Ministry of Defence through Chief of Air and Army Staff and others” (PLD 2007 Supreme Court 405) and “Ali Rizwan Raja versus Federation of Pakistan and others” (PLD 2019 Islamabad 273).

4. After having heard learned counsel for the petitioner as well as learned law officer at considerable length, I have perused the record and gone through the relevant provisions cited by both the sides in order to appreciate their respective contentions in true perspective.

5. This petition is in the form of habeas corpus as contemplated under Article 199(1)(b)(i) of “Constitution” which reads as under:-

“199. (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--

(a) -------------

(i) -------------

(ii) -------------

(b) On the application of any person, make an order--

(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or

;

;

;

(Underlining supplied for emphasis)

From the bare perusal of the above referred provision of law it is manifestly clear that while exercising jurisdiction in terms of Article 199(1)(b)(i) of “Constitution”, the Court has to satisfy itself that a person who has been taken into custody by the law enforcement agencies was taken so with due process of law and his custody is backed by some legal authority.

1. In this regard, to my mind, case of “Malik Ghulam Jilani versus (1) The Government Of West Pakistan, through The Home Secretary, Lahore and (2) The Deputy Commissioner, Lahore” (PLD 1967 Supreme Court 373) is quite relevant. In the said case, a question had arisen regarding the illegality or otherwise of detention orders of three persons, namely Malik Ghulam Jillani, Sardar Shaukat Hayat Khan and Nawabzada Nasrullah Khan. The objection was raised before the Hon’ble Supreme Court of Pakistan that as the detenues had been released from the custody, therefore, their appeals have become infructuous. The Hon’ble Apex Court held that though the alleged detenues were already released from the custody but even then the Court can determine the legality of the orders, whereby they were kept in confinement. The relevant extract from the said judgment is reproduced below:

“It remains to mention that during the course of the hearings of these appeals all the three detenus were released by the Provincial Government. In the ordinary course, such release would have had the effect of causing the appeals to abate, but in these cases, learned counsel urged that since in each case the detention bad exceeded a period of nine months, the detenus had thereby incurred disqualification in respect of their right to stand for elections to representative offices, by the effect of Section 53 of the Electoral College Act and Section 106 of the National and Provincial Assemblies (Elections) Act. Each of them was a politician of standing and was gravely prejudiced by this result in respect of his future political career and each of them was therefore interested to establish that his detention was illegal. The Court was therefore asked to record a decision as to the legality of the detention order of the 16th February 1966.

…………… I would hold that the detention of Nawabzada Nasrullah Khan under the Deputy Commissioner’s order of the 16th February 1966, was illegal, but as to Sardar Shaukat Hayat Khan and Malik Ghulam Jilani, I would hold that the detentions were made in accordance with law and under lawful authority. The two appeals relating to Nawabzada Nasrullah Khan should accordingly be allowed and since his detention was bad ab initio, he should have his costs in the appeal filed by himself. The appeals relating to Sardar Shaukat Hayat Khan and Malik Ghulam Jilani should be dismissed with no order as to costs.”

1. In recent past, a learned Division Bench of this Court, in the case of “Mrs. Ifrah Murtaza and another versus Government of Pakistan and others” (PLD 2019 Lahore 565), while relying upon the principles laid down in the case of Malik Ghulam Jilani’s supra, observed as under:

“Moreover, we daily appoint Bailiffs in different petitions of habeas corpus, for the recovery of the alleged detenus from the custody of the police and though in the case of illegal detention of any person by the police, Bailiff takes the custody of the said person and releases him with the direction to appear before the Court on the next date but even then the Courts determine the question of legality of detention of a person by the police and if it is established that the detention of any person was illegal then orders of imposition of fines, departmental actions and even registration of FIRs are passed by the Courts a gainst the delinquent police officials, inspite of the fact that the detenu had already been released from the custody. Reference in this context may also be made to the cases of ‘Zafar Iqbal v. The Province of Sindh and 2 others’ (PLD 1973 Karachi 316) and A1i Ahmed v. Muhammad Yakoob Almani, Deputy Suprintendent of Police, Qasimabad, Hyderabad and 5 others’ (PLD 1999 Karachi 134).”

It is even otherwise bounden duty of this Court, being the custodian of the fundamental rights of the citizens to examine the question relating to the curtailment of their liberty, with vigor and due care as the right of liberty of a person is one of the valuable fundamental rights guaranteed under Article 9 of “Constitution”.

9. The alleged detenue though was an Army Officer but he got retired in the year 2007 and after his retirement joined the profession of law. There is consensus to this effect that as such he ceases to be subject of the “Act, 1952”. As per stance of Respondent No. 1, he has been taken into military custody under the provisions of Section 2(1)(d) read with Sections 59 & 73 of “Act, 1952” and “Act, 1923”. Dilating upon the scope and mandate of all these provisions one by one, it is observed that Section 2(1)(d) of “Act, 1952” is neither a penal clause nor it creates any offence against the said Act. Section 2 of “Act, 1952” defines the persons, who are subject to the Act and reads as under:

“2. Persons subject to the Act.--(1) The following persons shall be subject to this Act, namely:--

(a) officers, junior commissioned officers and warrant officers of the Pakistan Army;

(b) persons enrolled under The Indian Army Act, 1911 (VIII of 1911), before the date notified in pursuance of sub-section (2) of Section 1, and serving with the Pakistan Army immediately before that date, and persons enrolled under this Act;

(bb) persons subject to the Pakistan Navy Ordinance, 1961 (XXXVI of 1961), or the Pakistan Air Force Act, 1953 (VI of 1953), when seconded for service with the Pakistan Army, to such extent and subject to such regulations as the Federal Government may direct;

(c) persons not otherwise subject to this Act, who, on active service, in camp, on the march, or at any frontier post specified by the Federal Government by notification in this behalf, are employed by, or are in the service of or are followers of, or accompany any portion of the Pakistan Army;

(d) persons not otherwise subject to this Act who are accused of,--

(i) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or

(ii) having committed, in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Official Secrets Act, 1923;

(iii) claiming or are known to belong to any terrorist group or organization using the name of religion or a sect; and

(a) raise arms or wage war against Pakistan, or attack the Armed Forces of Pakistan or law enforcement agencies, or attack any civil or military installations in Pakistan; or

(b) abduct any person for ransom, or cause death of any person or injury; or

(c) posses, store, fabricate or transport the explosives, fire arms, instrument, articles, suicide jackets; or

(d) use or design vehicles for terrorist acts; or

(e) provide or receive funding from any foreign or local source for the illegal activities under this clause; or

(f) act to over-awe the state or any section of the public or sect or religious minority; or

(g) create terror or insecurity in Pakistan or attempt to commit any of the said acts within or outside Pakistan, shall be punished under this Act; and

(iv) claiming or are known to belong to any terrorist group or organization using the name of religion or a sect and raise arms or wage war against Pakistan, commit an offence mentioned at Serial Nos. (i), (ii), (iii), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xii), (xv), (xvi), (xvii) and (xx) in the Schedule to the Protection of Pakistan Act, 2014 (X of 2014).

Provided that any person who is alleged to have abetted, aided or conspired in the commission of any offence falling under sub-clause (iii) or sub-clause (iv) shall be tried under this Act wherever he may have committed that offences:

Provided further that no person accused of an offence falling under sub-clause (iii) or sub-clause (iv) shall be prosecuted without the prior sanction of the Federal Government.

Explanation: In this clause in the expression ‘sect’ means a sect of religion and does not include any religious or political party regulated under the Political Parties Order, 2002.

(e) persons not otherwise subject to this Act who belonged to the former East Pakistan Civil Armed Forces and were repatriated to Pakistan after the sixteenth day of December, 1971.

(2) Every person subject to this Act under clause (a) or clause (b) or clause (e) of sub-section (1) shall remain so subject until duly retired, released, discharged, removed or dismissed from the service.

(3) Every person subject to this Act under clause (bb) of sub-section (1) shall remain so subject during the period of his secondment to the Pakistan Army.

(4) The Federal Government shall have the power to transfer any proceedings in respect of any person who is accused of any offence falling under sub-clause (iii) or sub-clause (iv) of clause (d) of sub-section (1), pending in any Court for a trial under this Act.

(5) Any proceedings transferred under sub-section (4) shall be deemed to have been instituted under this Act.

(6) Where a case is transferred under sub-section (4)it shall not be necessary to recall any witness or again record any evidence that may have been recorded.”

It is obvious from the title of the section that it defines the persons who are subject to the “Act, 1952”. There are two categories of persons defined therein. First category is relating to the persons, who are in active service of any of the Armed Forces and are mentioned in sub-clauses (a) to (c), who by virtue of their status are subject to the Act undoubtedly. The other category is of the persons, who are not otherwise subject to the “Act, 1952” but if they are accused of the offences mentioned in sub-clause (d), they also become at the same pedestal as to the first category for the purposes of the “Act, 1952”.

1. Chapter V of “Act, 1952” enumerates the offences of different nature starting from Sections 24 to 58. Section 59 of the Act ibid deals with the civil offence committed by the person subject to the Act whereas Section 8(3) defines the “civil offence” as under:

“(3) “civil offence” means an offence which, if committed in Pakistan, would be triable by a Criminal Court;”

By virtue of Section 59 of “Act, 1952” all civil offences committed by persons subject to the Act are brought within the purview of the “Act, 1952” but the scheme of the section shows that the offences do not lose their character as being civil offences. It has made persons subject to the Act, who have committed any such civil offence and are charged therewith, only “liable to be dealt with under this Act”. Same is the position of persons who become subject to the Act by virtue of sub-section (4) of Section 59. They also become only liable to be tried or otherwise dealt with under the “Act, 1952” for an offence mentioned in clause (d) of Section 2(1) as if the offence was an offence against the Act and was committed at a time when such person was subject to the “Act, 1952”.

1. Since the alleged detenue was otherwise not subject to the Act and he was treated so in terms of Section 2(1)(d) of “Act, 1952” so the term “accused” used therein becomes of great importance. Sub- clause (d) of Section 2(1) was initially not the part of statute but it was added in “Act, 1952” through Defence Services Laws (Amendment) Ordinance, 1967 (III of 1967) with effect from 25th September, 1967 and its scope came under consideration before the Hon’ble Supreme Court of Pakistan in the case of “Brig. (Retd.) F.B. Ali and another versus The State” (PLD 1975 Supreme Court 506) and while defining the term “accused” the Hon’ble Apex Court held as under:

“In my view the mere lodging of an information does not make a person an accused nor does a person against whom an investigation is being conducted by the police can strictly be called an accused. Such person may or may not be sent up for trial. The information may be found to be false. An accused is, therefore, a person charged in a trial. The Oxford English Dictionary defines an “accused” as a person “charged with is a crime” and an “accusation” as an “indictment”. Aiyer in his Manual of Law Terms also gives the same meaning. I am of view, therefore, that a person becomes an accused only when charged with an offence. The Criminal Procedure Code also uses the word “accused” in the same sense, namely; a person over whom a Court is exercising jurisdiction.”

Though the above aspect has received only a passing reference in the above said case but it had clinched the true import of term “accused” used in Section 2 (1)(d) of the “Act, 1952”.

1. This Court in the case of “Saifuddin Saif versus Federation of Pakistan and 3 others” (PLD 1977 Lahore 1174), while pondering upon the mandate of Section 2(1)(d) of “Act, 1952” observed as under:

“15. It has not been denied that civilians-term used in a general sense--as distinguished from the personnel in the Armed Forces covered under clauses (a), (b) and (bb) as also persons other than those belonging to the Armed Forces who are employed or are in the service of or followers of the Pakistan Army, were not originally included in the various categories of persons subject to the Army Act. It is also an admitted position that all such civilians have not been made so subject, in all matters, to the Army Act. Only two categories of offences are mentioned in sub-clauses (i) and (ii) of clause (d) of sub-section (1) of Section 2 in connection with which the so- called civilians are made so subject. It is further to be noted that the specified offences are also offences under the ordinary law and, but for this special provision, are triable in ordinary course of criminal proceedings under the general codes and procedures applicable to all civilians. Thus, essentially clause (d) provides an exception and the same has to be construed strictly. Due benefit to the persons concerned in this behalf cannot be withheld on any general consideration which are obvious and which it is not necessary to spell out. The above course of action is also necessitated by the use of the phrase “persons not otherwise subject” prefixed as a starting point for bringing the so-called civilians under the Army Act.

1. Keeping the foregoing principle in view, it is necessary to give content and meaning to each provision of this all important clause (d) of sub-section (1) of Section 2 which makes persons not otherwise subject to the Army Act and its provisions; with which such persons, undoubtedly, are ordinarily not to familiar; as these persons, as ordinary citizens, are familiar with the other prevailing laws relating to crime, its detention and punishment. Clause (d) clearly specifies that a person who is not otherwise subject to the Act would become so subject only when “He--is--Accused of” one or more offences mentioned therein.”

After having an overview of the principles laid down in the above cited judgments, it can safely be inferred that a person cannot be said to be “accused” in order to bring him within the mischief of the “Act, 1952” unless the Military Authorities have found out a prima facie case against him, and have formally charged him. Until that stage is reached, a person, if not ordinarily subject to the Act, cannot be held to be an accused and thereby made subject to the Act. Reference in this respect can also be made to “Syed Muhammad Anwar Shohrat Bokhari versus Federation of Pakistan and 3 others” (PLD 1981 Lahore 742).

1. Attending the contention of learned law officer that the custody of the alleged detenue is duly covered under the Pakistan Army Act Rules, 1954 (hereinafter referred as “Rules, 1954”), suffice to observe that very language used in clause (d) of Section 2 of the “Act, 1952”, a person would not be subject to the Act unless he is accused of in a formal sense and till then he would not have to be dealt with under the Military Law as such. Therefore, till the precise stage of the formal accusation, the person would not be so subject and that being so, many complications which otherwise can be visualized would not arise. Accusation is undoubtedly a stronger phrase than mere complaint. Though both the words carry the meaning of a charge, yet in case of complaint it relates to a stage when the charge is still to mature into an accusation. This minute and trivial distinction can be spelled out from the combined reading of Rules 13, 15 and 19 of “Rules, 1954”. In terms of Rule 19 charge sheet is required to be contained whole issue or issues to be tried by a Court martial at one time and it has been defined “an accusation contained in a charge sheet that a person subject to the Act has been guilty of an offence.” This question is further clarified through a note appended underneath Rule 19 wherein it is mentioned that charge referred in Rule 19 is the formal written charge upon which the accused is to be tried, as distinct from the charge or complaint mentioned in Rules 13 and 15 which give rise to preliminary investigation. The reading of Note 1 also spelled out from the word charge thus the word “complaint”, “charge” and “accusation” have been used as different phrases conveying different senses. Similar conclusion would be derived from the bare reading of Section 73 of”Act, 1952”, which reads as under:-

“73. Custody of offenders.--(1) Any person subject to this Act who is charged with any offence may be taken into military custody.

(2) Any such person may be ordered into military custody by any superior officer, or except in the case of a person subject to this Act as an officer, by any member of the military, naval or air force police.

(3) An officer may order into military custody any officer, though he may be of a higher rank, who is engaged in a quarrel, affray or disorder.”

The note appended with this provision also clarified that charges referred to in sub-sections (1) & (2) of Section 73 as also in Rules 13 and 15 relating to arrest and investigation are different from that referred to in Rule 19. The latter is the formal charge preferred by the Commanding Officer and set out in the written charge sheet if and when it is decided to send the accused to trial. The former is simply a complaint that an offence has been committed. The nutshell of above discussion is that provisions referred hereinabove only cater the process relating to the persons subject to Army Act excluding the persons mentioned in Section 2(1)(d) of the “Act, 1952”.

14. It is evident from the record that Mr. Inam-ul-Rahiem, Advocate has been taken into custody on the allegations of commission of offences under “Act, 1923”. The said Act provides a mechanism for the arrest as well as trial of the offences as is embodied in Sections 11, 12 and 13 of the said Act. A person accused of an offence under the “Act, 1923” can only be arrested as contemplated in Section 11 thereof. Section 12 deals with the power to arrest and reads as under:-

“12. Power to arrest.--Notwithstanding anything in the Code of Criminal Procedure, 1898,--

(a) [Omitted]

(b) an offence under this Act, other than an offence punishable with imprisonment for a term which may extend to fourteen years, shall be a cognizable and bailable offence; and

(c) any member of the armed forces of Pakistan may, without an order from a Magistrate and without a warrant, arrest in or in the vicinity or a prohibited place, any person who has been concerned in an offence under Section 3, under Section 3 read with Section 9, or under clause (a) or clause (b) or sub-section (1) of Section 5, or under clause (a) of sub-section (1) of Section 6, or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned, and shall without unnecessary delay take or send the person arrested before a Magistrate having jurisdiction in the case or before an officer in charge of a police-station, and thereupon the provisions of the said Code applicable in respect of a person who, having been arrested without warrant, has been taken or sent before a magistrate or before and officer in charge of a police-station shall apply to him.”

(Underlining supplied for emphasis)

It is manifestly clear from sub-section (c) that any member of the Armed Forces of Pakistan can only arrest a person without any formal order from the Magistrate and without a warrant in or in the vicinity of a prohibited place. The prohibited place is defined in Section 2(8) of “Act, 1923” which is reproduced below for ready reference:-

“(8) “Prohibited place” means--

(a) any work of Defence, arsenal, naval, military or air force establishment or station, mine, minefield, camp, ship or aircraft belonging to, or occupied by or on behalf of, Government, any military telegraph or telephone so belonging or occupied, any wireless or signal station or office so belonging or occupied and any factory, dockyard or other place so belonging or occupied and used for the purpose of building, repairing, making or storing any munitions of war, or any sketches, plans, models or documents relating thereto, Or for the purpose of getting any metals, oil or minerals of use in time of war;

(b) any place not belonging to Government where any munitions of war or any sketches, models, plans or documents relating thereto, are being made, repaired, gotten or stored under contract with, or with any person on behalf of, Government, or otherwise on behalf of Government;

(c) any place belonging to or used for the purpose of Government which is for the time being declared by the appropriate government, by notification in the official Gazette, to be a prohibited place for the purposes of this Act on the ground that information with respect thereto, or damage thereto, would be useful to an enemy, and to which a copy of the notification in respect thereof has been affixed in English and in the vernacular of the locality;

(d) any railway, road, way or cannel, or other means of communication by land or water (including any works or structures being part thereof of connected therewith), or any place used for gas, water or electricity works or other works for purposes of a public character, or any place where any munitions of war or any sketches, models, plans, or documents relating thereto, are being made, repaired or stored otherwise than on behalf of Government, which is for the time being declared by the appropriate Government by notification in the official Gazette, to be a prohibited place for the purpose of this Act on the ground that information with respect thereto, or the destruction or obstruction thereof, or interference therewith, would be useful to an enemy, and to which a copy of the notification in respect thereof has been affixed in English and in the vernacular of the locality:

Provided that where for declaring a prohibited place under sub-clause (c) or sub-clause (d) a notification in the official Gazette is not considered desirable in the interest of the security of the State, such declaration may be made by an order a copy or notice of which shall be prominently displayed at the point of entry to, or at a conspicuous place near, the prohibited place.”

The arrest was thus clear in negation of the above referred provisions of law. Needless to observe that if in the opinion of Respondent No. 1, the alleged detenue was an accused of the offences under the “Act, 1923”, he may have a resort to the provisions contemplated in the “Act, 1923” and then to Section 549 of the Code of Criminal Procedure, 1898 seeking his delivery to the Military Authorities to be tried by the Court martial.

1. Learned law officer has though supplemended his contentions with the judgment reported as “Mushtaq Ahmed and others versus Secretary, Ministry of Defence through Chief of Air and Army Staff and others” (PLD 2007 Supreme Court 405) but it is observed with all reverence that the facts of the said case runs on entirely different footings having no nexus with the matter in hand as there is no cavil to the proposition that a civilian person, when once becomes the subject of “Act, 1952”, he would be liable to be tried and punished as a person who is otherwise subject to the “Act, 1952”. So far the principles laid down in the case of “Ali Rizwan Raja versus Federation of Pakistan and others” (PLD 2019 Islamabad 273), it is observed that in presence law laid down by the Hon’ble Supreme Court of Pakistan in the case of “Brig. (Retd.) F.B. Ali and another versus The State” (PLD 1975 Supreme Court 506) which was followed by this Court in the cases of “Saifuddin Saif versus Federation of Pakistan and 3 others” (PLD 1977 Lahore 1174) and “Syed Muhammad Anwar Shohrat Bokhari versus Federation of Pakistan and 3 others” (PLD 1981 Lahore 742) there remains no binding force in the said judgment. It appears that the learned Islamabad High Court, Islamabad was not assisted properly in the said matter. Any judgment of a High Court cannot lay down the principles contrary to the Hon’ble Apex Court as it offends the mandate of Article 189 of the “Constitution”.

16. Adverting to the ouster clause contained in Article 199(3) of “Constitution” it is observed that the said clause prohibits the Court for making an order on application made by a person, who is member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law. In view of clause (5) of the same Article, a “tribunal established under a law relating to the Armed Forces of Pakistan” is not included in the term “person” to whom a direction can be issued under the Article. Sub-section (4) of Section 59 of “Act, 1952”, makes it clear that jurisdiction of this Court under Article 199 of “Constitution” is only barred in respect of a person mentioned as above. A civilian, who is otherwise not subject to the Pakistan Army Act, can become so subject, if he is “accused” of an offence under clause (d) of sub-section (1) of Section 2 of the Pakistan Army Act. Even otherwise it is by now well settled principles of law that whenever order/action impugned is without jurisdiction, malafide or coram non judice, bar under Article 199(3) of “Constitution” would not be attracted. The impugned action of the Army Authorities of taking into custody Mr. Inam-ul-Rahiem, Advocate is not only without lawful jurisdiction but is clearly tainted with malafide as spelled out from the facts of the instant case mentioned in preceding Paragraph No. 2 as they have made all endeavor to withhold the factum of detention from the Court. Guidance in this respect can be sought from “Federal Government M/O Defence, Rawalpindi versus Lt. Col. Munir Ahmed Gill” (2014 SCMR 1530) and Civil Appeal No. 1038 of 2006 “Ghulam Abbas Niazi versus Federation of Pakistan and others” (PLD 2009 Supreme Court 866).

1. For the foregoing reasons, the instant petition is allowed. As a consequence thereof, detention of Mr. Inam-ul-Rahiem, Advocate is declared illegal and unlawful as such he is directed to be set at liberty forthwith.

2. The above are the detailed reasons of short order dated 09th January, 2020, which reads as under:

“For the reasons recorded to be later this petition is accepted, as a result thereof, detention of Mr. Inam-ul-Rahiem, Advocate with the Army Authorities is declared illegal and unlawful. He shall be released forthwith.”

(Y.A.) Petition accepted

PLJ 2020 Lahore 74 [Multan Bench, Multan]

Present:Tariq Saleem Sheikh, J.

ALI IMRAN--Petitioner

versus

ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE MULTAN and 4 other--Respondents

W.P. No. 14183 of 2019, decided on 29.10.2019.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 489-F--Application for registration of case--Accepted--Challenge to--Cheque was dishonoured--Cognizable offence--Direction to--Admittedly, Cheque No. 10113361 has been dishonoured--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--Nevertheless, Respondent SHO is directed to ensure that during investigation Petitioner is provided full opportunity to prove whatever plea he takes in his defence--Petition was dismissed. [P. 75] A & B

PLD 2013 Lahore 442 ref.

Malik Muhammad Riaz, Advocate, for Petitioner.

Malik Shaukat Mehmood Marha, AAG. For Respondents.

Rana Jahanzeb Khan, Advocate, for Respondent No. 3.

Date of hearing: 29.10.2019.

Order

This constitutional petition is directed against order dated 18-9-2019 passed by the learned Ex-officio Justice of Peace, Multan.

1. Brief facts of the case are that Respondent No. 3 filed an application under Section 22-A, Cr.P.C. stating that in the year 2016 she sold her house measuring 2½ marlas to the Petitioner in consideration of Rs. 13,00,000/- out of which the Petitioner paid Rs. 400,000/- in cash and for the remaining sum issued her three cheques. Out of them two were encashed while Cheque No. 10113361 for Rs. 200,000/- was dishonoured. Respondent No. 3 contended that the Petitioner had committed a cognizable offence and prayed that a direction be issued to the Respondent SHO for registration of FIR against him. The said application was accepted by the learned Ex-officio Justice of Peace vide impugned order dated 18.9.2019. Hence, this petition.

2. The learned counsel for the Petitioner contended that Respondent No. 3 had filed the aforementioned application before the learned Ex-officio Justice of Peace on the basis of a false and concocted story. Cheque No. 10113361 was without consideration. As such, the provisions of Section 489-F PPC were not attracted. The impugned order was not sustainable and liable to be set aside.

3. The learned Law Officer and the learned counsel for Respondent No. 3 supported the impugned order. They prayed that the instant petition be dismissed.

4. Arguments heard. Record perused.

6. Admittedly, Cheque No. 10113361 has been dishonoured. 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 Lah. 442).

7. The impugned order dated 18.9.2019 is based on cogent cement 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. Nevertheless, the Respondent SHO is directed to ensure that during the investigation the Petitioner is provided full opportunity to prove whatever plea he takes in his defence.

(M.M.R.) Petition dismissed

PLJ 2020 Lahore 76 [Multan Bench, Multan]

Present:Asim Hafeez, J.

MUKHTAR AHMAD--Petitioner

versus

PROVINCE OF PUNJAB etc.--Respondents

C.R. No. 843-D of 2011, decided on 27.11.2019.

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

----O.VII R. 11 & O.II R. 2--Specific Relief Act, (I of 1877), S. 18--Agreement to sell--Suit of petitioner was rejected--Appeal--Dismissed--Challenge to--Enforcement of agreement lake of entitlement--Question of--Whether claim falls within scope of Section 18(1)(b)--Determination--Revisional jurisdiction--There is no cavil to applicability of rigours of Order II rule 2 CPC, as situation which existed at time of filing of first suit - absence of proprietary rights - remained unchanged till time of filling of subsequent suit--Therefore, petitioner is not entitled to sue afterwards in respect of alleged claim - when facts, circumstances and ground realities, at time of filling of first suit and later at filing of another suit remained unchanged - hence, orders of rejection of plaint are unexceptionable--It is evident that no representation or promise was made by Respondent No. 1 to extend propriety rights to Respondent No. 2, hence no advantage can be claimed under Section 18(1)(b) of Act of 1877--Now question of alleged entitlement of petitioner under Section 18 of Act of 1877 is examined in light of judicial pronouncements on issue--Lack of entitlement of petitioner to seek protection of Section 18, ibid, as long as imperfect title continues stood affirmed in terms of ratio decidendi of decision in case reported--Decision of rejection of plaint in wake embargo/limitations provided under Order II rule 2 CPC does not suffer from any illegality, perversity or irregularity in exercise of jurisdiction by courts below. [Pp. 78, 80, 82 & 83] A, B & D

2002 YLR 2865 ref.

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

----S. 18--Transfer of Property Act, 1882, S. 43--Right of vendee--Applicability of--Rights of vendee, in terms of agreement or enforceable understanding, were only acknowledged in terms of Section 18 of Act of 1877 and Section 43 of Transfer of Property Act 1882-where applicable - provided title of vendor has become perfect, subsequent to arrangement entered or executed--I hold that petitioner has no right to, otherwise, file subsequent suit in wake of continued disability - imperfect title of Respondent No. 2 and no protection can be claimed or extended in terms of Section 18 of Act of 1877--Petition was dismissed. [Pp. 81 & 83] C & E

PLD 2004 SC 108 ref. PLD 1955 FC1, 2012 SC 400

Syed Muhammad Ali Gilani, Advocate for Petitioner.

Mr. Azhar Saleem Kamlana, A.A.G.

M/s. Muhammad Akram Khan and Ms. Kousar Parveen, Advocates for Respondents No. 2(i) & 2(ii).

Date of hearing: 27.11.2019.

Order

This Civil Revision is directed against judgment dated 18.06.2011 by learned District Judge, Khanewal, whereby appeal of the petitioner was dismissed and the judgment and decree dated 10.01.2011 of learned Civil Judge was upheld, which rejected petitioner’s plaint in exercise of power under Order VII Rule 11, Civil Procedure Code 1908 (CPC) by invoking provisions of Order II Rule 2, CPC.

1. Briefly the facts, necessary for adjudication of lis at hand, are that petitioner claimed to have entered into agreement to sell dated 24.07.1984 (‘agreement’) with the Respondent No. 2, alleged allottee of land granted in terms of Grow More Fruit Scheme, enforcement thereof was contingent upon the grant of propriety rights by Respondent No. 1 to Respondent No. 2 (deceased and represented through legal heirs). Later on, petitioner, who claimed possession of the land, apprehended further sale of property by Respondent No. 2, filed suit for .seeking injunction against alienation, which suit was decreed on 17.06,1985 - apparently on conceding statement of the Respondent No. 2 [whose counsel has denied the execution of the agreement during the course of hearing of the matter]. Petitioner, basing its claim on the agreement and earlier decree passed, filed suit for declaration on 4.01.2011, wherein relief in the nature of injunction and, in the alternate, specific performance of agreement was sought. The critical part was admission on the part of the petitioner that no proprietary rights were extended or conferred upon the Respondent No. 2, till the time of filing of subsequent suit. In brief, the plaint was rejected upon invoking embargo in terms of Order II Rule 2 of CPC, which judgment was upheld in appeal. Hence, this Civil Revision.

2. Learned counsel, representing petitioner, submits that suit is maintainable and plaint was not liable to be rejected in view of the rights extended to the petitioner; in view of continued imperfect title of the Respondent No. 2, under Section 18 of the Specific Relief Act, 1877 (Act of 1877). While responding to the arguments, learned counsel for the Respondent No. 2 denied execution of the agreement and emphasized that suit was not maintainable.

3. Arguments heard. Available record perused.

5. The answers to the questions raised herein are in fact, embedded in the construction of Section 18 of Act of 1877, applicability thereof and the relevancy of Order II rule 2 CPC - invocation whereof led to the rejection of the plaint. There is no cavil to the applicability of rigours of Order II rule 2 CPC, as the situation which existed at the time of the filing of the first suit - absence of proprietary rights - remained unchanged till the time of filling of subsequent suit. Therefore, the petitioner is not entitled to sue afterwards in respect of alleged claim - when facts, circumstances and ground realities, at the time of filling of first suit and later at the filing of another suit remained unchanged - hence, orders of rejection of plaint are unexceptionable.

1. The matter does not end here; rather calls for determination of an equally critical question that whether suit/action can be initiated by the petitioner in terms of Section 18 of Act of 1877, on the basis of agreement to sell in view of continued imperfect title of the Respondent No. 2. It is expedient to reproduce the Section 18 of Specific Relief Act:

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

(a) If vendor or lessor has subsequently to the sale or lease acquired any interest in the property, the purchase or lessee may compel him to make good the contract out of the 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 unencumbered 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 purchase may compel him to redeem the mortgagee 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 vender or lessor in the property agreed to be sold or let.

[Emphasis supplied]

1. There is consensus that propriety rights are not granted to Respondent No. 2, till to-date. Whether enforcement of agreement can be sought under Section 18 of Act of 1877 when the title continues to be imperfect. To my mind, in case the title of the vendor continues to be imperfect, no right to seek enforcement of agreement can be claimed in terms of Section 18(l)(a) of Act of 1877. Whether the claim falls within the scope of Section 18(l)(b]? Is the Respondent No. 1 obligated to extend validation of the title at the request of the Respondent No. 2. Nothing has been placed on record to affirm any such obligation of the Respondent No. 1. A reference to Office Memorandum No. 2096-2011/824-CL-III by Board of Revenue, Punjab, Lahore dated 25th May, 2011 is apt, which is reproduced hereunder for convenience:

No. 2096-2011/824-CL-III, Board of Revenue, Punjab, Lahore dated the 25th May, 2011.

To

1] All the Divisional Commissioners, in Punjab.

2] All the District Collectors, in the Punjab.

Subject: Advice for grant of proprietary rights of state land under Grow More Food Scheme and Ejected Tenants Scheme.

Memorandum:

In supersession of this office memorandum No. 1758-2009/ 1953-CL-III, dated 07.07.2010 and in supersession of all previous policy memorandums, on the subject cited above.

1. The policy matter regarding the conferment of proprietary rights in the subject schemes has been re-considered in the Board of Revenue, Punjab and observed that no promise regarding the conferment of the proprietary rights was made while making original allotments. The proprietary rights were conferred subsequently from time to time through separate nonfictions with cut of dates. The alternate land was provided in both these schemes in cases wherein the allotted land had fallen within the prohibited zone. The alternate land was also provided only outside prohibited zone on applications to be filed within certain cut of dates. While issuing notifications regarding conferment of proprietary rights in both these schemes relaxation in prohibited zone was never granted. If is, therefore, decided as under:

“In Grow More Food Scheme and in Ejected Tenants Scheme, the District Collectors will determine the limits of prohibited zone at the time of making proprietary rights and the proprietary rights will be granted only in cases wherein the state land in these schemes is outside prohibited zone and Charagah at present. In addition to this, all other legal requirements regarding the fulfillment of conditions and submission of application before the cut dates etc., should also be kept under consideration. This policy decision will be applicable in both the original and alternate allotment”.

1. Previous policy instructions/clarification issued on 07th July, 2010, stands withdrawn.

Sd/- Secretary (Colonies) Board of Revenue, Punjab.

8. It is evident that no representation or promise was made by the Respondent No. 1 to extend propriety rights to the Respondent No. 2, hence no advantage can be claimed under Section 18(1)(b) of Act of 1877. Now the question of alleged entitlement of the petitioner under Section 18 of Act of 1877 is examined in the light of judicial pronouncements on the issue. Lack of entitlement of the petitioner to seek protection of Section 18, ibid, as long as imperfect title continues stood affirmed in terms of the ratio decidendi of decision in case reported as “Ismat Ara Begum through Legal heirs and another vs. Malik Iftikharuddin and another” (2002 YLR 2865), relevant portion whereof is reproduced as:

“In view thereof we have no doubt that a transferable title does not presently vest in the respondents enabling them to transfer the suit-land to the appellants through execution and registration of a Civil Judge to grant appellants a decree for specific performance of the agreement to sell through judgment and decree dated 19.12.2000 is unexceptionable.”

[Emphasis supplied]

1. This legal position is affirmed in view of the judgment reported as “Shamoon and others vs. Ahmad and others” (1986 SCMR 888), relevant part thereof is reproduced as under:

“The reliance by the learned Single Judge on Section 18 of the] Specific Relief Act is also unexceptionable. It provides that a person entering into an agreement for sale of a property having imperfect title, but subsequently acquiring, interest in the property, is bound to make good the contract, out of such interest. The finding that at the time the petitioner side entered into agreement, they had intention to transfer their interest in the land after they become proprietors thereof, is well-founded.”

10. The rights of the vendee, in terms of agreement or enforceable understanding, were only acknowledged in terms of Section 18 of Act of 1877 and Section 43 of the Transfer of Property Act 1882 where applicable - provided the title of the vendor has become perfect, subsequent to the arrangement entered or executed. In the case of “Government of Punjab through Minister for Revenue Board of Revenue. Lahore and others vs. Messrs Crescent Textile Mills Limited” (PLD 2004 S.C 108), the principle embodied in Section 43 of Transfer of Property Act and Section 18 of Act of 1877 was affirmed and claim was held enforceable once title was conferred unto provincial government with respect to the property, subject matter of the noted case. Likewise, in the judgment reported as ‘Ziauddin Rafi vs. Muhammad Khan and others” (PLD 1962 West Pakistan 321), the right of vendee was acknowledged once property devolved on the seller, upon opening of inheritance - at which point in time the seller can be compelled to make the contract good. A reference to a celebrated judgment would be apt to elucidate the scope of Section 18 of Act of 1877, which case is reported as “Sayyed Ghulam Muhammad Shah vs. Sayyed Fateh Muhammad Shah” (PLD 1955 FC 1), relevant portion whereof is reproduced as:

“It is true that the Transfer of Property Act, 1882 is not in force in the Punjab and such transfers are not void in that Province by reason of any statutory rule. But the principle on which such transfers are held to be void is of wider application and rests on that rule, also recognized by English Law, that an expectancy is not property which can be assigned. There is, however, one exception to this principle, which has been enforced by the Courts in England, and here in the Provinces where the Transfer of Property Act is not in force. That exception was stated by Buckley, J in re. Ellenborough ((1903) 1 Ch. 697) at p. 700 where he said, “if value be given, it is immaterial what is the form of assurance by which the disposition is made, or whether the subject of the disposition is capable of being thereby disposed of or not. An assignment for value binds the conscience of the assignor. A Court of Equity as against him will compel him to that which ex hypothesis he has not yet effectually done. Future property, possibilities and expectancies are all assignable in equity for value: Taiby v. Official Receiver ((1888) 13 A C 523 at p. 543). But when the assurance is not for value, a Court of Equity will not assist a volunteer.” The exception has received statutory recognition here in Section 43 of the Transfer of Property Act, Section 115 of the Evidence Act and Section 18 of the Specific Relief Act. The doctrine of feeding the grant by estoppel which appears as the solitary illustration to Section 115 of the Evidence Act and in Section 43 of the Transfer of Property Act is based on the ground that if a person, for value received, conveys what he does not own but subsequently he acquires the title which he conveyed, then the transferee can enforce the conveyance against him. A Court of Equity in such cases will not only actively assist the person paying the value but will also repel, the transferor’s plea based on the invalidity of the transfer in law. Similarly Section 18 of the Specific Relief Act recognizes as enforceable at law the right of a person contracting to purchase or to take in lease property from a person who at the time of the contract does not own it but who subsequently acquires it. This rule, being founded on equity, has been applied in the Punjab, where the Transfer of Property Act is not in force.”

1. I lay my hands on a judgment reported as “Muhammad Aslam and 4 others vs. Ghulam Rasool and 6 others” (2002 MLD 1860), where suit for declaration was allowed to be amended into a suit for specific performance
2. notwithstanding continuing imperfect title , which judgment is per-incuriam and, humbly submitted, has not correctly interpreted Section 18 of Act of 1877.

12. The decision of rejection of plaint in wake embargo/ limitations provided under Order II rule 2 CPC does not suffer from any illegality, perversity or irregularity in the exercise of

jurisdiction by the courts below. Even otherwise, in the exercise of revisional jurisdiction extended under Section 115 CPC and elucidated by the Honourable Supreme Court of Pakistan in judgment reported as “Hafeez Ahmad and others vs. Civil Judge. Lahore and others” (2012 Supreme Court 400), I hold that the petitioner has no right to, otherwise, file subsequent suit in the wake of continued disability - imperfect title of the Respondent No. 2 and no protection can be claimed or extended in terms of Section 18 of Act of 1877.

1. In view of above, this petition is without any merit, therefore, same is dismissed.

(M.M.R.) Petition dismissed

PLJ 2020 Lahore 98

Present:Shujaat Ali Khan, J.

MUHAMMAD MUZAMMIL--Petitioner

versus

JUDGE FAMILY COURT, PAKPATTAN etc.--Respondents

W.P. No. 4735 of 2017, decided on 14.1.2020.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Suit for recovery of maintenance allowance and dowry articles--Ex-parte decreed--Application for setting aside ex-parte decree--Dismissed--Appeal--Dismissed--Non-serving of notices--Unheard condemnation--Chak number of petitioner was wrongly mentioned in plaint Question of--Whether reasons mentioned by petitioner in his application for setting aside of ex-parte judgment and decree were sufficient or not--Challenge to--It has not been rebutted by learned counsel for Respondents No. 3 to 6 that Chak Number of petitioner was wrongly mentioned in plaint--As far as plea of respondents that since there is only village with name of Adda Peerowal in Khanewal, wrong mentioning of Chak Number was inconsequential, is concerned, suffice it to note that common residence of a person is identified according to his Chak Number except villages without such demarcation and if Respondents No. 3 to 6 did not reflect exact Chak Number of petitioner, presumption is that notices issued in his name did not reach him--In this scenario, reasons provided by petitioner for setting aside of ex-parte judgment & decree were fully justified—Petition was accepted. [P. 102] A

Constitution of Pakistan, 1973--

----Art. 189--Binding of verdict of Supreme Court of Pakistan--According to Article 189 of Constitutional of Islamic Republic of Pakistan, 1973 every verdict of Hon’ble Supreme Court of Pakistan, deciding a question of law has binding force upon all organs of State and while violating same learned Courts below have committed grave illegality which cannot be allowed to sustain. [P. 102] B

1988 SCMR 747 ref.

Ms. Sumera Fazil Khan, Advocate for Petitioner.

Mr. Sami Ullah, Advocate for Respondents No. 3 to 6.

Date of hearing: 14.1.2020.

Order

Unnecessary details apart, Respondents No. 3 to 6 filed a composite suit for recovery of maintenance and dowry articles, worth Rs. 13,68,000/- which was decreed by the learned Judge Family Court, Pakpattan (the learned trial Court) vide ex-parte judgment & decree, dated 09.12.2013. Upon knowledge of the ex-parte judgment & decree, the petitioner filed an application for setting aside thereof which was dismissed by the learned trial Court through order, dated 20.04.2016, against which he filed an appeal but without any success as the same was dismissed by the learned Additional District Judge, Pakpattan Sharif (the learned Appellate Court) through judgment, dated 22.12.2016; hence this petition.

1. Learned counsel for the petitioner contends that according to CNIC of the petitioner, he is resident of Chak No. 80/10-R, Peerowal, District Khanewal whereas in plaint of the suit Respondents No. 3 to 6 mentioned his address as Chak No. 8/10-R, Peerowal, District Khanewal, thus, the petitioner was not served prior to initiation of ex-parte proceedings against him; that since application of the petitioner for setting aside of ex-parte judgment & decree as well as appeal were dismissed on technical grounds, he was condemned unheard and that in case the impugned decisions are not set-aside, the petitioner would suffer irreparable loss.

2. Conversely, learned counsel, representing Respondents No. 3 to 6, while defending the impugned decisions of the Courts below, contends that mala-fide on the part of the petitioner is manifest from the fact that he has not paid even a single penny towards maintenance of the minors; that the learned trial Court while dismissing application of the petitioner for setting aside of ex-parte judgment & decree observed in unequivocal words that he was aware about pendency of proceedings in the year 2013 when he procured certified copy of the ex-parte judgment & decree, dated 09.12.2013 and that since there is only one Adda Peerowal in Khanewal, the assertion of the petitioner regarding wrong mentioning of Chak Number is not worth consideration.

3. While exercising his right of rebuttal, learned counsel for the petitioner contends that since it was established in evidence that the certified copy used by the petitioner, at the time of his release was got issued by the respondents as he never applied for the same, the period of limitation could not be reckoned from the date of issuance of certified copy; that since the petitioner has paid reasonable amount before the learned trial Court, it cannot be believed that he has not paid a single penny for maintenance of the minors and that since marriage between the parties is still intact, the petitioner is ready to rehabilitate Respondent No. 3.

4. I have heard learned counsel for the parties at considerable length and have also gone through the documents, appended with this petition.

5. A perusal of the impugned decisions of the learned Courts below shows that while deciding the matter they mainly hinged upon the fact that since the petitioner was in knowledge of ex-parte judgment & decree, from the year 2013, his application for setting aside of ex-parte judgment & decree was barred by law of limitation. Perhaps, learned Courts below have observed so in oblivion of the fact that period of 30- days to assail the ex-parte judgment & decree passed by a Family Court, contained under rule 13 of the West Pakistan Family Court Rules, 1965, has been declared ultra-vires by the Apex Court of the country in the case reported as Maj. Matloob Ali Khan v. Additional District Judge, East Karachi and another (1988 SCMR 747) by inter alia observing as under:

“6. It will be noticed from the passage of the impugned judgment reproduced above that the learned Additional District Judge as well as the learned Judge in the High Court took the view that the application for setting aside ex-parte decree passed by the Family Court was to be made within 30 days of the passing of the decree as provided by rule 13 of the West Pakistan Family Courts Rules, 1965, which reads as follows:

“Ex parte decree or proceedings may, for sufficient cause shown, be set aside by the Court on application made to it within 30 days of the passing of the decree or decision.”

However, sub-section (6) of Section 9 of the Family Courts Act, 1964, provides as under:

“In any case in which a decree is passed ex-parte against a defendant under this Act, he may apply within reasonable time of the passing thereof to the Family Court by which the decree was passed for an order to set it aside, and if he satisfies the Family Court that he was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was heard or called for hearing, the Family Court shall, after service of notice on the plaintiff, on such terms as to cost as it deems fit, make an order for setting aside the decree as against him, and shall appoint a day for proceeding with the suit; provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside against all or any of the other defendants also.”

The plain reading of the aforesaid provisions makes it clear that the statute provided no time limitation for making application for setting aside an ex-parte decree passed by a Family Court. The point to be noted is that this is not a case where the statute is silent with regard to the period of limitation for making an application of this nature, but a positive provision has been made permitting the making of such application “within reasonable time of the passing” of the ex-parte decree. The question is whether in the face of such statutory provisions, the rule making authority could frame a rule in any way limiting the period of limitation to a fixed period. The rule making power has been vested in the Government under Section 26 of the Family Courts Act for making rules to carry into effect the provisions of the Act. When the Act itself provides for making the application within reasonable time, apparently fixing a period of limitation for general application to all cases, cannot be in consonance with the provisions of the Act and cannot be said to carry into effect the provisions of the Act. See Ch. Altaf Hussain v. The Chief Settlement Commissioner and others PLD 1965 SC 68. The reason is that the question of what constitutes reasonable time would obviously depend upon the facts of each particular case and it will not be possible to lay down a rule of thumb that in all cases the fixed period of 30 days would be reasonable time. Subsection (2) of Section 26 clearly expresses the legislative intent that the rules made thereunder shall not be inconsistent with the provisions of the Act. It is well established that the subordinate power of framing rules granted by the statute cannot be exercised to override the express provisions of the statute. Clearly, therefore, rule 13 is ultra vires the power of the rule-making authority. The learned Additional District Judge and the High Court did not examine the plea of the appellant on merits and disposed of the case on the ground that his application was barred by limitation, which was clearly against the express provisions of the statute. The order of the Additional District Judge was, therefore, passed in excess of jurisdiction and without lawful authority and was, therefore, liable to be declared as such. It seems that this aspect of the matter was not brought to notice of the learned Judge in the High Court.” (emphasis provided)

7. According to Article 189 of the Constitutional of Islamic Republic of Pakistan, 1973 every verdict of the Hon’ble Supreme Court of Pakistan, deciding a question of law has binding force upon all organs of the State and while violating the same learned Courts below have committed grave illegality which cannot be allowed to sustain.

8. The next question which boils down for determination by this Court is as to whether the reasons mentioned by the petitioner in his application for setting aside of ex-parte judgment & decree were sufficient or not. It has not been rebutted by the learned counsel for the Respondents No. 3 to 6 that Chak Number of petitioner was wrongly mentioned in the plaint. As far as plea of the respondents that since there is only village with the name of Adda Peerowal in Khanewal, wrong mentioning of Chak Number was inconsequential, is concerned, suffice it to note that common residence of a person is identified according to his Chak Number except villages without such demarcation and if the Respondents No. 3 to 6 did not reflect the exact Chak Number of the petitioner, the presumption is that the notices issued in his name did not reach him. In this scenario, the reasons provided by the petitioner for setting aside of ex-parte judgment & decree were fully justified.

1. For what has been discussed above, instant petition is accepted and impugned decisions of the Courts below are set-aside and the application of the petitioner for setting aside of ex-parte judgment & decree shall be deemed to be pending which shall be decided by the learned trial Court afresh.

2. Before parting with this order, it is observed that since the minors have no other source of income, this order is subject to payment of maintenance to them, by the petitioner, at the rate of Rs. 2,000/- (Two Thousand Rupees) each per month, since the filing of suit. Further, till the decision of the matter by the learned trial Court afresh, the petitioner would continue payment of future maintenance at the said rate. In the event of default on the part of the petitioner to pay past and future maintenance of the minors in terms of this Para, this order would cease to exist. This arrangement, being tentative in nature, learned trial Court is required to re-decide the matter without being influenced by the above observations. It is further clarified that the amount already deposited/paid by the petitioner, towards maintenance, shall be scored off while calculating tentative past maintenance in terms of this order.

3. The Registrar of this Court is directed to ensure circulation of this order to all the District & Sessions Judges in the province for its onwards information and compliance by the Courts in future.

4. The Registrar of this Court is also directed to take relevant authorities on board for amendment in the Family Court Rules, 1965 in line with the judgment of the Hon’ble Supreme Court of Pakistan, referred Supra.

(Y.A.) Petition accepted

PLJ 2020 Lahore 103

Present:Shujaat Ali Khan, J.

M/s. GAS DRIVE CNG SERVICES--Petitioner

versus

SPECIAL JUDGE (RENT), LAHORE etc.--Respondents

W.P. No. 104282 of 2017, decided on 13.1.2020.

Constitution of Pakistan, 1973--

----Art. 199--Arbitration Act, (XI of 1940), S. 34--Ejectment petition--Filling of application for stay of proceedings--Dismissed--Lease agreement--Unsettled disputes will be resolved through arbitration--Agreement could be altered, added or deleted through mutual consent--Challenge to--Party should invoke provisions of Section 34 ibid prior to filing of written statement or taking any other step in proceedings which fact can be verified from conduct of party concerned--It is admitted position that in instant matter petitioner filed application seeking leave to contest ejectment petition filed by Respondent No. 2 but did not bother to move application under Section 34 ibid for stay of proceedings simultaneously--If intention of petitioner was to get stay of ejectment proceedings, it was supposed to file such application at earliest--Further, intention of petitioner to bye-pass arbitration proceedings is evinced from its act of signing MOU giving option to Respondent No. 2 approach Court in event of violation of terms and conditions of original Lease Agreement as well as MOU--During course of arguments, learned counsel for petitioner, while portraying Act, 2009 as general law claimed that it was subservient to Act, 1940 being special law--In this regard, I am unable to subscribe to said view as Act, 2009 being special law to deal with rent matters exclusively cannot be dubbed as general law rather Act, 1940 being applicable to multiple proceedings instituted under different enactments can be termed as such--Despite addressing Court at length, learned counsel for petitioner has not been able to point out any material illegality in impugned order justifying interference by this Court in exercise of its Constitutional jurisdiction--Petition was dismissed.

[Pp. 109 & 110] A, B, C, D & E

Ref. PLD 1981 SC 553; 1988 SCMR 310.

Mr. Khalid Mahmood Sheikh, Advocate for Petitioner.

Agha Abu-ul-Hassan Arif, Advocate for Respondent No. 2.

Date of hearing: 13.1.2010.

Judgment

Through this petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has assailed order, dated 27.10.2017, passed by the learned Special Judge (Rent), Lahore whereby the application filed by it, under Section 34 of the Arbitration Act, 1940 (the Act, 1940) for stay of proceedings in the ejectment petition filed by Respondent No. 2, was dismissed.

1. Learned counsel for the petitioner submits that the learned Special Judge (Rent) omitted to consider that when the arbitration clause in the original lease agreement was kept intact, in the event of any dispute between the parties the matter was to be referred for the Arbitration; that the Act, 1940 being the special law enjoys precedence over the Punjab Rented Premises Act, 2009 (the Act, 2009) being the general law but the learned Special Judge (Rent) failed to consider the said important aspect of the matter; that since dispute pending before the competent forum for appointment of Arbitrator relates to quantum of rent, the learned Special Judge (Rent) cannot proceed in the ejectment petition till the matter is decided by the Arbitrator; that bona-fide of the petitioner is manifest from the fact that it disclosed in his application for leave to contest the ejectment petition that it had already moved for resolution of dispute through the Arbitrator; that according to Section 26(2) of the Act, 2009 proceedings before the learned Special Judge (Rent) are judicial in nature, Section 34 ibid was fully attracted and that in case the impugned order is not set aside the petitioner would suffer an irreparable loss as it would be deprived of its right for settlement of issue through Courtesy of the Arbitrator.

2. Conversely, learned counsel representing Respondent No. 2, while defending the impugned order, states that the petitioner was supposed to file application for stay of proceedings before taking any step in the ejectment proceedings but when it filed application for leave to contest it was debarred to file application under Section 34 ibid; that since the petitioner has already been granted leave to contest, instead of producing evidence, it is using delaying tactics to delay conclusion of ejectment proceedings and that execution of Memorandum of Understanding (MOU) amounted to novation of contract. Relies on Industrial Fabrication Company through M.D. v. Managing Director, Pak American Fertilizer Limited (PLD 2015 SC 154) and Messrs Nawab Brothers Ltd., Karachi v. Project Director, Office of the Project Director, Special Projects, Planning and Development Department, Karachi and another (1981 CLC 638). In addition to his oral submissions, learned counsel has also made written submissions with the plea that the Act, 2009 being special law has over-riding effect on the Arbitration Act which is a general law and that when the parties mutually opted to amend the original Lease Agreement they were bound to adhere to the terms & conditions of the subsequent MOU which was signed by both the parties.

3. While exercising his right of rebuttal, learned counsel for the petitioner contends that MOU cannot be considered as novation of a contract as in the latter, the earlier contract is substituted with a new one whereas in the former the conditions of the original contract can be varied or modified; that since application seeking leave to contest was filed subsequent to filing of the application by the petitioner for resolution of the matter through an Arbitrator in terms of original Lease Agreement, the application of the petitioner filed under Section 34 of the Act, 1934 could not be dismissed.

4. I have heard learned counsel for the parties at considerable length and have also scanned the documents, appended with this petition, as well as the case-law, cited at the bar.

5. A perusal of the original Lease Agreement shows that under clause 16 of the said agreement the parties covenanted to get unsettled disputes resolved through arbitration. Further, under clause 18 of the said agreement, it was also agreed that terms & conditions of the original Lease Agreement could be altered, added or deleted with mutual consent. While invoking the said clause, the parties opted to execute MOU wherein besides introducing various amendments, certain additions were also incorporated in the original Lease Agreement and one of the newly added clause was that in case of any violation of terms & conditions, stipulated in the original Lease Agreement and subsequent MOU by the Lessee, the Lessor would be entitled to file ejectment petition at any time in the Court of competent jurisdiction. The said newly added clause renders it crystal clear that the petitioner itself consented that in the event of any violation on its part, the Lessor would be at liberty to approach the Court of competent jurisdiction, thus, filing of application for stay of ejectment proceedings seems to be against the spirit of said MOU, thus, the same was rightly dismissed by the learned Special Judge (Rent).

6. Since the moot question in this matter is interpretation of Section 34 of the Act, 1940, it would be beneficial to have glance over it. For convenience of reference, the said provision is reproduced herein below:

“34. Power of Court, where arbitration agreement is ordered not to apply to a particular difference, to order that a provision making an award a condition precedent to an action shall not apply to such difference: Where it is provided (whether in the arbitration agreement or otherwise) that an award under an arbitration agreement shall be a condition precedent to the bringing of an action with respect to any matter to which the agreement applies, the Court, if it orders (whether under this Act or any other law) that the agreement shall cease to have effect as regards any particular difference, may further order that the said provision shall also cease to have effect as regards that difference.”

A perusal of the afore-quoted provision renders it crystal clear that a party can move for stay of judicial proceedings pending before a forum prior to filing written statement or taking any other steps in the pending proceedings. While elaborating the said condition, the Hon’ble Supreme Court of Pakistan in the case reported as Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners (PLD 1981 SC 553) has inter alia held as under:

“In my opinion, the true tests for determining whether an act is a step in the proceedings is not so much the question as to whether the party sought an adjournment for filing the written statement although of course that would be a satisfactory test in many cases but whether taking into consideration the contents of the application as well as all the surrounding circumstances that led the party to make the application display an unequivocal intention to proceed with the suit, and to give up the right to’ have the matter disposed of by arbitration. An application of such nature, therefore, should prima facie be construed as a step in the proceedings within the meaning of Section 34, and the whole burden should be upon the party to establish why effect should not be given to the prima facie meaning of the application.”

Further, the said view was also endorsed in the case of Ghulam Sarwar and others v. Mazharullah (1988 SCMR 310) inter alia with the following observations:

“The main question, which came up for consideration before the High Court, was whether the petitioners, before filing of the application under Section 34 of the Arbitration Act, had taken steps in the proceedings and having done so, were not entitled to invoke the arbitration clause and seek stay of the suit.

1. We heard the learned counsel for the parties and have gone through the impugned judgment. The learned High Court, on the basis of the evidence on the record, found that the petitioners had taken steps in the proceedings and as such were not entitled to invoke the arbitration clause and ask for the stay of the suit. The learned counsel for the respondent invited our attention to the order sheet of the trial Court in support of the findings of fact recorded in the impugned order.”

Similarly, the Apex Court of the country in the matter of Muhammad Farooq v. Nazir Ahmad and others (PLD 2006 SC 196) while dealing with the issue, under discussion, has laid law to the effect that:

“8. The admitted position is that the appellant/defendant for the first time appeared in the Court on 28th of March, 1998 when the same was adjourned to 17.4.1998 for submission of the written statement and filing power of attorney. The written statement was not filed as such suit was adjourned to 30.4.1998 when the learned Presiding Officer was on leave. The suit was accordingly adjourned to 13-5-1998 yet on the said date written statement was not filed. Learned counsel for the appellant/defendant requested for adjournment to file written statement which was allowed and suit was adjourned to 18-5-1998 but as the Presiding Officer was on leave, therefore the suit was again adjourned to 30-5-1998 when application under Section 34 of the Arbitration Act was moved. From the above proceedings in the Court it would be clear that the appellant even after the receipt of notice of the plaint got three clear dates for filing written statement but the application under Section 34 of the Act was moved on the fourth date. Above acts of the appellant on number of dates stated above would show that he intended to participate and defend the suit before the Court. In this process he engaged a counsel and filed adjournment application or requested for adjournment on the above dates. We may also observe that test for determining whether an act is a step in the proceedings or not, this Court in the case of Pakistan International Airlines Corporation v. M/s. Pak Saaf Dry Cleaners PLD 1981 SC 553 at page 559 in the last para. has observed:

“As would be seen from above, the mere existence of a clause providing for arbitration does not bar a suit or other legal proceeding in Court. It only entitles a party to have the legal proceedings stayed. In order that a stay may be granted under the provisions of this section, certain conditions must be fulfilled. The party must take the objection and apply for stay proceedings before taking any step, for example, the filing ‘of the written statement, that is, before he placed his cards on the table. The provisions of the section, further imply that the Court should, first of all, examine whether the arbitration clause applies to the dispute, and if it does, whether the nature of the dispute is such that the ends of justice will be better met by the decision of the Court than by that of private forum chosen and agreed upon, and to which the parties had made themselves bound to adhere and adopt in case that type of dispute arose between them. The Legislature has, of course, clearly implied in the language used in the section that the arbitration clause should be respected, but has also made it abundantly clear that the party seeking to avail of the provision of stay under this section must clarify his position at the earliest possible opportunity, so as to leave no manner of doubt that he wishes to have resort to arbitration proceeding. If he hesitates in this regard, or allows the suit to proceed in any manner, that conduct would indicate that he has abdicated his claim to have the dispute decided under the arbitration clause, and to have thereby forfeited his right to claim stay of the proceedings in the Court.”

In para. 3 at page 564 of the above cited decision this Court has observed:

“In my opinion, the true test for determining whether an act is a step in the proceedings is not so much the question as to whether the party sought an adjournment for filing the written statement although of course that would be a satisfactory test in many cases but whether taking into consideration the contents of the application as well as all the surrounding circumstances that led the party to make the application display an unequivocal intention to proceed with the suit, and to give up the right to have the matter disposed of by arbitration. An application of such nature, therefore, should prima facie be construed as a step in the proceedings within the meaning of Section 34 and the whole burden should be upon the party to establish why effect should not be given to the prima facie meaning of the application.”

From the above citations, one thing is clear that the party should invoke provisions of Section 34 ibid prior to filing of written statement or taking any other step in the proceedings which fact can be verified from the conduct of the party concerned.

1. Now the next question which boils down for determination by this Court is as to whether filing of application seeking leave to contest by the petitioner amounts to taking of any other step. While clinching somewhat similar issue, under discussion, the Hon’ble Peshawar High Court in the case of Government of the N.-W.F.P. and others v. Khalid Khan and others (2006 MLD 1897) has inter alia held as under:

“3. The main ground for dismissing the petition for sending the matter to the arbitrator was that the defendants had taken steps in proceedings and had not submitted application promptly. The adjournments requested for and granted to the defendants for submission of written statement were declared as steps taken by the defendants and it was held that the defendants had not taken up the issue of sending the matter to the arbitrator at the earliest and, hence, had relinquished/waived their rights for such request……

1. In the instant case, after setting aside the ex-parte proceedings/order against the respondents, the respondents requested for adjournments for submission of written statement, which amounted to their submission to the jurisdiction of the Court and their acquiescence also. By making such requests for adjournment, the appellants (then defendants) gave the mind to the opposite party that they were ready to contest the suit before the learned trial Court and were preparing for submission of written statement. There was every opportunity for the defendants to submit application for stay of proceedings at the earlier before such requests and adjournments, as they had the knowledge of the suit and have been praying for setting aside the ex-parte order against them. The defendants could make up mind urgently and could submit an application under Section 34 of the Arbitration Act, 1940 at the earliest without requesting for adjournments for submission of written statement.”

It is admitted position that in the instant matter the petitioner filed application seeking leave to contest the ejectment petition filed by Respondent No. 2 but did not bother to move application under Section 34 ibid for stay of the proceedings simultaneously. If the intention of the petitioner was to get stay of ejectment proceedings, it was supposed to file such application at the earliest. Further, intention of the petitioner to bye-pass the arbitration proceedings is evinced from its act of signing MOU giving option to Respondent No. 2 approach the Court in the event of violation of terms and conditions of the original Lease Agreement as well as MOU.

9. During the course of arguments, learned counsel for the petitioner has put much emphasis on the fact that since the arbitration clause available in the original Lease Agreement was not expressly done away through subsequent MOU, any dispute between the parties was to be resolved through the Arbitrator. In this regard, I am of the view that in the original Lease Agreement it was decided between the parties that in the event of any unsettled dispute the matter would be resolved through an Arbitrator but when the petitioner itself consented to the effect that in case of violation of any terms & conditions of original lease agreement and subsequent MOU Respondent No. 2/lessor would be at liberty to approach the Court of competent jurisdiction, it was estopped to move application for stay of proceedings of the ejectment petition filed by Respondent No. 2.

10. It is very astonishing to note that during the course of arguments, learned counsel for the petitioner, while portraying the Act, 2009 as general law claimed that it was subservient to the Act, 1940 being the special law. In this regard, I am unable to subscribe to the said view as the Act, 2009 being special law to deal with the rent matters exclusively cannot be dubbed as general law rather the Act, 1940 being applicable to multiple proceedings instituted under different enactments can be termed as such.

11. Despite addressing the Court at length, learned counsel for the petitioner has not been able to point out any material illegality in the impugned order justifying interference by this Court in exercise of its Constitutional jurisdiction.

1. For what has been discussed above, I see no force in this petition which is dismissed with no order as to costs.

(Y.A.) Petition Dismissed

PLJ 2020 Lahore 111

Present: Shujaat Ali Khan, J.

Mst. SAMAN NASEER--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, LAHORE etc.--Respondents

W.P. No. 3812 of 2019, decided on 23.1.2020.

Constitution of Pakistan, 1973--

----Art. 199--Suit for Jactitation of marriage--Dismissed--Appeal--Dismissed--Issuance of computerized marriage registration certificate--Concurrent findings--Challenge to--A bare perusal of Nikah Nama shows that marriage between parties was witnessed by Mirza Arshad Ali (DW-4) and Muhammad Niaz (DW-6) and same was performed by Hafiz Samee Ullah (DW-3)--Further, factum of said marriage was incorporated in record of Union Council concerned on same day and in token thereof Computerized Marriage Registration Certificate was issued on 27.11.2013--In this backdrop, Respondent No. 3 discharged his initial onus of fulfilling pre-requisites of a valid Nikah Nama--Since she was more than 27 years of age at time of Nikah she was competent enough to enter into Nikah with anybody according to her own whims even without intervention of a third person, in particular Wakeel--Marriage between parties was solemnized against wishes of their families it cannot be believed that some immediate family members of petitioner would have participated in said marriage especially when there is great difference between social/financial status of parties--Contention of petitioner that her signatures and thumb-impression, on alleged Nikah Nama, were product of fraud and misrepresentation, I am of humble view that when a party alleges a specific fact it is bound to prove same--There is no denying fact that initially in suit for restitution of conjugal rights, Respondent No. 3 contradicted on point of solemnization of Nikah and departure but subsequently, with permission of Court, he filed amended plaint rectifying certain errors/omissions--In this backdrop, contents of un-amended plaint cannot be used to rely upon acclaimed contradiction on part of Respondent No. 3 while filing Written Statement and Suit for Restitution of Conjugal Rights--One hand petitioner is of view that somebody else was managed by Respondent No. 3 in her place at time of marriage but on other she opposed application of Respondent No. 3 for comparison of her signatures and thumb-impressions available on Nikah Nama--During evidence petitioner side offered for virginity test of petitioner but when Respondent No. 3 moved formal application in that regard, instead of fulfilling undertaking given during evidence, petitioner opposed it tooth and nail which fact also supports plea of Respondent No. 3 that marriage between parties was consummated--Court has no sympathy with Respondent No. 3 but at same time it has to decide matter on basis of available evidence--Entire evidence produced by petitioner is suggestive of fact that instead of claiming that no marriage was solemnized between parties she took plea that no Sharai marriage was solemnized between them--Intimacy between parties, as disclosed in plaint, also lends support to plea of Respondent No. 3 that petitioner contracted marriage with her own but when faced with rigors of pressure of her family she opted to file suit for jactitation of marriage--In case in hand, stance of Respondent No. 3 regarding valid marriage stands endorsed from contents of Nikah Nama coupled with statement of Nikah Khawan and marginal witnesses in addition to statement made by petitioner herself in her complaint filed at Tandlianwala--Petition was dismissed.

[Pp. 122, 129, 131, 132, 134] A, B, C, D, E, F, G, H & I

PLD 1981 FSC 308, PLD 2009 Lahore 456, 2003 SCMR 1011, 1999 CLC 1320 & 2011 SCMR 1073 ref.

Mr. Abdul Khaliq Safrani, Advocate assisted by Mr. Muhammad Awais Riaz, Advocate for Petitioner.

Mr. Shoukat Rafiq Bajwa, Advocate assisted by Mr. Faiz-ur Rehman, Advocate for Respondent No. 3.

Dates of hearing: 13.11.2019, 14.11.2019, 20.11.2019, 05.12.2019, 09.12.2019, 19.12.2019 & 23.12.2019.

Judgment

Unnecessary details apart, the petitioner filed suit for jactitation of marriage against Respondent No. 3 which was dismissed by the learned Judge Family Court, Lahore (learned trial Court) vide judgment & decree, dated 04.05.2018, however, marriage between the parties was dissolved on the basis of Khula. Being aggrieved of the decision rendered by the learned trial Court, the petitioner preferred an appeal but without any success as the same was dismissed by the learned Additional District Judge, Lahore (learned Appellate Court) through judgment & decree, dated 22.12.2018; hence this petition.

1. Learned counsel for the petitioner submits that upon denial of execution of valid Nikah by the petitioner, onus shifted on the shoulders of Respondent No. 3 to prove valid Nikah between the parties but learned trial Court wrongly placed onus of the said issue on the petitioner; that initially, while filing written statement, Respondent No. 3 mentioned the date of marriage as 26.11.2013 and that of departure (rukhsti) as 26.11.2014 but while filing suit for restitution of conjugal rights he averred that departure (rukhsti) took place on the date of Nikah i.e. 26.11.2013 and in the affidavit-in-evidence filed before learned trial Court he knowingly omitted to mention the date of marriage with a view to camouflage material contradiction on his part during various proceedings; that both the Courts below also formed opinion against the petitioner for untenable reason that she did not appear in the witness box without considering that not only under Section 17 of the Family Courts Act, 1964 she could appear before the Court through an attorney but also she entered appearance before learned trial Court through attorney after seeking requisite permission from the Court; that careless attitude on the part of the learned trial Court is evident from the fact that though it observed in its judgment that the audio recording, initially produced by Respondent No. 3, was not available on Court file but in the later part of the judgment it relied upon the same; that DW-4 & DW-6, who allegedly witnessed the Nikah between the parties, did not utter even a word about the fact that the petitioner put her signatures or thumb-impression in their presence; that non-mentioning of exact address of the petitioner in Nikah Nama by the Nikah Khawan is proof of the fact that vague address was mentioned just to justify his jurisdiction to register the forged and fraudulent document (Nikah Nama); that material contradiction on the part of the DWs is evinced from the fact according to DW-3 the Nikah Nama was completed by his son who never entered the witness box whereas to the rest of the DWs the same was filled in by DW-3 (Nikah Khawan) himself; that mala-fideon the part of Respondent No. 3 is evident from the fact that though the petitioner is resident of Lahore but her address in the Nikah Nama was shown as that of Burewala; that according to father of Respondent No. 3, he visited the parties on 28.11.2014 when they were putting up in a rented house in Valencia Town, Lahore but according to the Rent Deed the period of tenancy was to start from 01.12.2014, thus, it could not be believed that the parties started to live in that house even prior to start of tenancy period; that contumacious conduct of Respondent No. 3 is established from the fact that in the Tenancy Agreement not only there is cutting on the date relating to issuance of stamp paper which was used for the said purpose but also the signing of said document by a witness on 22.11.2014 even prior to issuance of the stamp paper renders the entire story doubtful; that since Respondent No. 3 did not rely upon the Nikah Nama in the list of reliance, thus, he could not be allowed to produce the same at some subsequent stage; that upon coming to know about the material contradiction in the stances taken in the written statement and the suit filed by him for restitution of conjugal rights, Respondent No. 3 filed application for amendment of his suit for restitution of conjugal rights which was dismissed by the learned trial Court whose order remained intact upto this Court; that during proceedings before the learned trial Court, the petitioner gave consent that if it was proved from the location of her cell phone or through the audio recording, produced by Respondent No. 3, that she was available in Burewala on the date of Nikah she would withdraw her suit but the same was neither accepted by Respondent No. 3 nor was given any weightage by the Courts below; that though Nikah Nama is considered to be a public document but when its authenticity is impugned by any of the parties, it assumes the status of a private document and that the party claiming benefit under a document is bound to prove its execution. Relies on Matloob Hussain v. Mst. Shahida and 2 others (PLD 2006 SC 489), Qalandri Bibi v. Mst. Irum Bibi and others (2019 YLR 86), Sardara and Allah Ditta through Legal Heirs v. Mst. Bashir Begum and another (PLD 2016 Lahore 587), Mst. Ruqayya Bibi v. Additional District Judge etc. (PLD 2012 Lahore 408), Mushtaq Ahmed Malik v. Muhammad Sunawar Choudhary and another (2003 YLR 406) and Hafiz Abdul Waheed v. Miss Asma Jehangir and another (PLD 1997 Lahore 301).

2. Conversely, learned counsel representing Respondent No. 3, while defending the impugned decisions of the Courts below, submits that according to the documents appended with this petition the statement of the petitioner was recorded on 25.06.2016 through Courtesy of the Local Commission, namely, Mr. Shahzad Amin, Advocate but the said statement having not been signed by the learned trial Court could not be used against the respondent; that concurrent findings of facts recorded by the Courts below cannot be interfered by this Court; that learned counsel representing the petitioner has argued the matter as an appeal and relied upon certain provisions of Qanoon-e-Shahadat Order, 1984 and CPC despite the fact that both these enactments are inapplicable in familial matters; that despite addressing the Court at length, learned counsel representing the petitioner has not been able to point out any legal infirmity in the well-reasoned decisions of the Courts below justifying interference by this Court in exercise of its constitutional jurisdiction; that since it was run-away marriage, routine formalities could not be fulfilled, thus, the points agitated by the learned counsel representing the petitioner do not justify upsetting the concurrent findings of the Courts below; that though in the plaint the petitioner levelled allegation of misrepresentation and fraud but she did not produce any evidence to prove the same; that PW-1, during evidence, admitted that the photographs, produced before him, were of his niece (petitioner) thus solemnization of valid Nikahstood proved; that mala-fide on the part of the petitioner is evident from the fact that none of the PWs uttered even a word about the exact location of the petitioner on the date of Nikah meaning thereby that she was available with Respondent No. 3 at Burewala; that even while appearing before the Judicial Magistrate at Tandlianwala, the petitioner did not clarify that where she was on the date of Nikah; that the Bailiff, deputed in the habeas corpus petition filed by Respondent No. 3, raided the house of the petitioner whereupon he was told by maternal uncle of the petitioner (PW-1) that she was missing from the house for so many days which fact also lends support to claim of Respondent No. 3 that the petitioner contracted valid marriage with him; that the petitioner being more than 27 years of age at the time of Nikah competently exercised her right to contract marriage according to her own whims; that even in a letter, addressed by the petitioner to Respondent No. 3, she clarified that she did not file the suit out of which present proceedings have emanated which fact is sufficient to believe that her family compelled her to disown the contents of Nikah Nama; that inconsistent attitude on the part of the petitioner is evident from the fact that on the one hand she has taken the stance that she was alien to Respondent No. 3 but on the other in the caption of the suit has provided his full particulars, including CNIC Number; that a party, which alleges a fact, is bound to prove the same and since the petitioner alleged impersonation at the time of solemnization of Nikah, she was bound to prove that some other lady was produced in her place at the relevant time; that according to report of the Bailiff, deputed in the habeas corpus petition filed by Respondent No. 3, maternal uncle of the petitioner (PW-1) informed that she was missing for last two weeks and the said report having not been challenged any further and being a public document, carries presumption of correctness; that when a witness is found guilty of telling a lie, his/her entire statement is to be discarded; that though the petitioner got registered a criminal case against Respondent No. 3, wherein PW-1 is witness, but during evidence he (PW-1) refused to recognize Respondent No. 3; that the pleas raised by Respondent No. 3 before the fora were not specifically rebutted by PW-1, thus, the same amounted to admission; that PW-2 admitted that at the time of raid by the bailiff, deputed in the habeas corpus petition filed by Respondent No. 3 the petitioner was not available in her house, thus, she was bound to establish her exact location anywhere else at the relevant time; that PW-2 did not deny execution of Nikah between the parties with the only difference that it was not Sharai Nikah; that PW-2 admitted that English signatures of the petitioner, available on Nikah Nama, matched with her signatures available on her CNIC; that voluntary portion of statement of a witness cannot be used to decide a matter; that Section 18 of the Family Courts Act, 1964 only provides for appearance of a person through an attorney who has been called to appear as a witness but since the petitioner herself filed suit and pursued it till the stage of evidence, no persuasive reasons were given by learned trial Court while permitting her to appear through attorney; that it is very ironical that most of the family members of the petitioner are leading bachelor life, thus, their unhappiness over the marriage between the parties was natural; that since the last lines of document available at Page No. 99 corresponds to the opening lines of document available at Page No. 101, it stands established that documents available at Page Nos. 100 & 101 were inserted at some subsequent stage; that while showing his bona fide, Respondent No. 3 filed application for comparison of signatures of the petitioner on Nikah Nama with her admitted signatures but the same was hotly contested by her and resultantly the same was dismissed by learned trial Court with the observation that the same was filed belatedly; that during proceedings before learned trial Court, in the first instance the petitioner side offered for virginity test of the petitioner to confirm as to whether the marriage between the parties was consummated or not but when Respondent No. 3 filed formal application in that regard, the petitioner opposed it tooth and nail just to conceal the reality; that since Respondent No. 3 succeeded to prove that he had been living with the petitioner as husband-wife, the execution of tenancy in favour of Respondent No. 3 at some subsequent point was immaterial as in routine the landlords hand over physical possession of the rented premises to the tenants even before completion of codal formalities; that it is well-established by now that evidence recorded in one case cannot be used in another case except for the purposes of confrontation to a witness; that since Respondent No. 3 amended plaint of his suit for restitution of conjugal rights, with permission of the Court, any deficiency in the un-amended plaint could not be used against him; that suggestion, howsoever strong, cannot be used as substitute of a fact; that inconsistent attitude of the petitioner is apparent from the fact that in the first instance she alleged that her signatures were forged by Respondent No. 3 but subsequently while improving her case she took the plea that some other lady was produced in her place at the time of Nikah; that personal appearance of the petitioner in the witness box case was also necessary for the reason that certain questions, in particular those relating to the measurement for stitching of bride suit, could only be answered by herself and not by the attorney; that love-letter written by the petitioner to Respondent No. 3, with her blood, stands proof of the fact that they were fully involved with each other which ultimately resulted into solemnization of run-away marriage as parents of both sides were not ready for arrange marriage; that bona fide on the part of Respondent No. 3 is visible from the fact that despite animosity with the family of the petitioner, he opted to attend funeral of mother of the petitioner when he was not only brutally thrashed but also a criminal case was got registered against him; that though after issuance of medico legal report pursuant to the direction of the Magistrate concerned, a criminal case was registered against family of the petitioner but the same was cancelled within 09 days of its registration due to the pressure of the petitioner’s family on account of their sound financial status; that cursory statement of the petitioner, made in the complaint filed by her at Tandlianwala, shows that at the relevant time she was not available in her parental house rather she was enjoying blissful marital life with Respondent No. 3; that sanction of marriage grant by the Bank in favour of Respondent No. 3 at the crucial time also affirms that valid marriage was solemnized between the parties; that minor discrepancies, highlighted by learned counsel for the petitioner during the course of arguments, cannot be used to interfere in the concurrent findings of facts recorded by the Courts below; that when the petitioner failed to rebut the assertion of Respondent No. 3 that on 26.11.2013 he was on leave from the Bank in connection with his marriage the plea of Respondent No. 3 was to be taken as correct; that to arrive at a just conclusion, Respondent No. 3 filed an application for verification of thumb-impression of the petitioner on various documents but the said request was hotly contested by the petitioner just to avoid unveiling of truth; that though the petitioner challenged certain orders of learned trial Court by filing constitutional petitions (writ petitions) before this Court but none of them was decided on merits, thus, the assertion of the petitioner that the orders passed by learned trial Court were upheld by this Court is against the record; that Section 18 ibid is only attracted when a person so required is Parda Nasheen lady or is unable to appear before the Court due to any other reason but in the case in hand when the petitioner opted for run-away marriage she could not be treated as Parda Nasheen lady; that appearance of the petitioner in person before different foraprior to filing of the suit, under discussion, speaks volumes about the fact that she could not be dubbed as Parda Nasheen lady; that after brushing aside the objections of the petitioner against production of photographs before the learned trial Court, the same were rightly relied upon by the Courts below; that with a naked eye, it can be discerned that signatures of the petitioner on different documents, appended with this petition as well as those available on Nikah Nama are identical; that since all the contentions of the petitioner were dealt with by the learned Appellate Court, one by one, no interference is called for by this Court in these proceedings; that since the petitioner was 27 years of age at the time of marriage it cannot be believed that she signed the Nikah Nama due to some pressure, duress or coercion; that when fraud was not specified in the pleadings, both the Courts below rightly disbelieved the said plea of the petitioner; that the case-law, referred by learned counsel for the petitioner, is inapplicable due to peculiar facts and circumstances of the present case inasmuch as in the case of Matloob Hussain (Supra) the Apex Court of the country has held that where the thumb-impression of the bride was obtained after abduction mere signing or thumb-marking the Nikah Nama was inconsequential and marriage between the parties could not be held valid. While concluding his arguments, learned counsel representing Respondent No. 3 has drawn attention of the Court towards the alleged unethical material being telecasted by different Media Houses ruining our social threadbare with the prayer that this Court should take note of such acts while issuing direction to the relevant authorities to control such contents which encourage run-away marriages and disintegration of our family system. In support of his contentions, learned counsel has relied upon the cases reported as Notice to police Constable Khizar Hayat son of Hadait Ullah on account of his false statement (PLD 2019 S.C. 527), Muhammad Idrees and others v. Muhammad Pervaiz and others (2010 SCMR 5), Muhammad Sharif v. Additional District Judge and others (2007 SCMR 49), Allies Book Corporation through L.Rs. v. Sultan Ahmad and others (2006 SCMR 152), Ghulam Nabi v. Additional District Judge, Jhelum and 47 others (2001 SCMR 683), Jamia Mahmoodia Masjid through its Nazim v. Additional Commissioner (Revenue), Multan Division and 2 others (1995 SCMR 1243), Ameena Haq v. Rab Nawaz Khan, etc. (PLJ 2018 Lahore 1088), Muhammad Ejaz and 18 others v. Noor Khan and 3 others (PLJ 2018 Lahore 11), Zahur Ahmad through L.Rs. and others v. Pakistan Cargo Services (Pvt.) Limited through Chief Executive and 4 others (2017 CLC 1032), Wahid Bakhsh and others v. Ameer Bakhsh and others (2015 CLC 1387), Mst. Gulshan Parveen v. Amar Safeer Khan and 10 others (2014 CLC 397), Dildar Hussain alias Dibar v. Judge Family Court, Sub-Divisional Courts, Tehsil Chichawatni and another (2014 MLD 1388), Asmatullah v. Allah Nawaz and others (2007 MLD 1329), Mst. Safia v. Mst. Bibi and 14 others (2005 MLD 646), Mst. Kausar Perveen v. Additional District Judge, Chichawatni, District Sahiwal and another (2000 YLR 577), Muhammad Riaz v. Mst. Noor-ul-Islam and 2 others (1998 CLC 1036) and Riasat Ali and 9 others v. Rahim Bakhsh and others (1992 CLC 2193).

3. While exercising his right of rebuttal, learned counsel for the petitioner contends that availability of CNIC and address of Respondent No. 3 with the petitioner was natural as she collected the same from the of Nikah Nama forged by him, thus said fact alone cannot be used to believe that valid Nikah was solemnized between the parties; that non-appearance of the petitioner in the witness box, in person, was not fatal as she had the option to appear through attorney in terms of Section 18 ibid; that mala-fide on the part of Respondent No. 3 is manifest from the fact that instead of reading evidence in entirety, he has relied on piecemeal evidence suitable to him; that the alleged filing of complaint by the petitioner at Tandlianwal and recording of her statement on the same day speaks volumes about mala-fide conduct of Respondent No. 3; that as according to Respondent No. 3 the petitioner was available at Burewala at the relevant time, he could conveniently manage filing of the complaint at Burewala and attestation of her affidavit at the said place but filing of complaint at Tandlianwala and attestation of the affidavit there speaks volumes about his fallacious claim; that reliance of Respondent No. 3 on cordial relations between the parties as classmates cannot be used as substitute of valid Nikah Nama for the reason that development of intimacy between the class fellows in routine is natural; that the Nikah Khawan, while giving evidence in the year 2017, admitted that he never seen the petitioner till making of his statement before the learned trial Court; that in his affidavit-in-evidence, DW-4 stated that he was only known to Respondent No. 3, thus, the alleged signing of Nikah Nama by the petitioner before him is inconsequential; that though during proceedings before the learned trial Court Respondent No. 3 produced audio script but when the petitioner asked for its forensic analysis he managed its removal from the Court record; that as a matter of fact all the formalities were completed by the Nikah Khawan on telephone; that according to the law laid down in the case of Matloob Hussain (Supra) when there is no relative of the bride available at the time of Nikah her will cannot be considered as free; that after disowning contents of Nikah Nama by the petitioner, onus was on Respondent No. 3 to prove execution of valid Nikah but he miserably failed to discharge said onus; that in the case of Mst. Ramzan Bibi v. Additional District Judge and others (1995 CLC 1506) it has been held that when there is nobody identifying the bride, marriage is invalid. In addition to his oral submissions in rebuttal, learned counsel for the petitioner has also filed written arguments in rebuttal with the contentions that the petitioner only came to know about the preparation of alleged Nikah by Respondent No. 3 on 12.12.2014 when the Bailiff of the Court raided her house pursuant to order passed by the Court in a habeas corpus petition filed by Respondent No. 3; that mala fide on the part of Respondent No. 3 is evident from the fact that he used scandalous language in the written statement just to malign the character of the petitioner; that since as per Section 18 ibid the petitioner had the option either to appear herself or through an attorney, the objection raised by learned counsel for Respondent No. 3 in that regard is ill- founded; that sinister efforts on the part of Respondent No. 3 to malign the petitioner’s character are evident from the fact that during the course of evidence, questions damaging the character and repute of the petitioner were put to the PWs; that when DW-4 admitted that there was cutting on the time mentioned in his affidavit-in- evidence with the further clarification that there was no mention of specific place where Nikah was performed, the suit filed by the petitioner was to be decreed as prayed for; that admission on the part of Nikah Khawan that Nikah Nama was not filled in by him rather the same was completed by his son speaks volumes about his mala fide conduct; that admission on the part of Nikah Khawan that Nikah Nama available in the UC was not attested by the competent authority rather it bore only stamp of the competent authority also supports the version of the petitioner that no valid Nikah was solemnized between the parties; that DW-5 failed to mention in his statement that the cursory statement in the complaint filed at Tandlianwala was made in his presence; that admission on the part of Muhammad Aslam (DW-2) that he never seen the parties as husband and wife in Burewala belies the claim of Respondent No. 3 that valid marriage was contracted between the parties; that amendment in the written statement by Respondent No. 3 after completion of cross-examination on PWs in the suit for jactitation of marriage stands proof of the fact that the same was only an after-thought; that stance of PW-1 that the petitioner was missing two weeks prior to 12.12.2014, when Bailiff raided house of the petitioner, cannot be used against her for the reason that he (PW-1) was not permanent resident of said house rather he came from outside at the time of raid by the bailiff thus he was not aware about the whereabouts of the petitioner; that while responding to a suggestion, Naseer Ahmad (PW-2) clarified that on 12.12.2014, the petitioner was with her maternal aunt (ممانی) at Muslim Town, Lahore; that simple snaps, which can be edited by anybody, cannot be relied upon to establish a valid Nikah.

4. I gave anxious hearing to the learned counsel for the parties on multiple dates in addition to going through the documents, appended with this petition, as well as the case-law, cited at the bar.

5. A perusal of the plaint shows that the petitioner prayed for jactitation of marriage on the grounds that nobody was appointed as Wakeel on behalf of the petitioner-plaintiff; that the witnesses of the marriage were not related to the petitioner- plaintiff; that the petitioner never gave her consent for Nikah; that signatures and thumb-impressions of the petitioner-plaintiff on the Nikah Nama were result of fraud and that the petitioner-plaintiff never resided with Respondent No. 3-defendant as wife.

6. According to Para No. 250 of Muhammadan Law by D.F. Mullah marriage (Nikah) means a contract which has for its object pro-creation and legality of children. Further, according to Para No. 251 of the said Book, every Muhammadan (Muslim) of sound mind and who has attained puberty may enter into a contract of marriage. Moreover, essentials of valid marriage have been enshrined under para No. 252 of said Book which for convenience of reference is reproduced herein below:

“252. Essentials of a marriage.--It is essential to the validity of a marriage that there should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal or on behalf of the other, in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Muhammedans. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and an acceptance made at another meeting do not constitute a valid marriage. Neither writing nor any religious ceremony is essential. Under Section 5, Muslim Family Laws Ordinance, 1961 every marriage solemnized under the Muslim Law shall be registered.”

According to the afore-quoted Para three ingredients of valid marriage are proposal, acceptance and presence of two male or one male and two female witnesses. Insofar as the marriage between the parties is concerned, suffice it to note that a bare perusal of Nikah Nama shows that marriage between the parties was witnessed by Mirza Arshad Ali (DW-4) and Muhammad Niaz (DW-6) and the same was performed by Hafiz Samee Ullah (DW-3). Further, factum of said marriage was incorporated in record of the Union Council concerned on the same day and in token thereof Computerized Marriage Registration Certificate was issued on 27.11.2013. In this backdrop, Respondent No. 3 discharged his initial onus of fulfilling pre-requisites of a valid Nikah Nama.

8. Now taking up the plea of the petitioner that no Wakeel was appointed on her behalf at the Nikah Nama, I am of the humble view that since she was more than 27 years of age at the time of Nikah she was competent enough to enter into Nikah with anybody according to her own whims even without intervention of a third person, in particular Wakeel. In this regard, I stand guided by the judgments reported as Muhammad Imtiaz and another v. The State (PLD 1981 FSC 308), Zarjuma alia Jamna Bibi v. Station House Officer, Police Station Saddar District Bhakkar and 4 others (PLD 2009 LHR 546) and Muhammad Afzaal v. Sessions Judge, Multan and 3 others (PLD 2008 Lahore 479). In the case of Muhammad Imtiaz and another (Supra) while discussing the verses from the Holy Qur’an, opinions of Muslim scholars as well as Ahadees, the Federal Shariat Court has inter alia observed as under:

9. As far as the plea of the petitioner that the persons, who witnessed the Nikah, were not related to her is concerned, suffice it to note that since marriage between the parties was solemnized against wishes of their families it cannot be believed that some immediate family members of the petitioner would have participated in the said marriage especially when there is great difference between the social/financial status of the parties. Further, as noted above, according to Para No. 252 ibid the only requirement of the law is presence of two male or one male and two female witnesses at the time of offer and acceptance irrespective of the fact that they are closely related to the parties or not.

10. Now coming to the contention of the petitioner that her signatures and thumb-impression, on the alleged Nikah Nama, were product of fraud and misrepresentation, I am of the humble view that that when a party alleges a specific fact it is bound to prove the same. Reliance in this regard can be placed on the cases reported as Allah Bakhsh and others v. Bakhsha and others (2003 SCMR 1011), Noor Muhammad v. Jamal Din and others (12000 CLC 305) and The HUB Power Co. v. WAPDA (1999 CLC 1320). Insofar as the case in hand is concerned, though the petitioner alleged fraud and misrepresentation but she did not specify the same. Had it been sole allegation of fraud then it was exclusive duty of Respondent No. 3 to prove execution of valid Nikah but when the petitioner also alleged impersonation/ misrepresentation she was bound to prove that who else was produced in her place at the time of alleged Nikah but having not done so she miserably failed to prove the allegations levelled in the plaint. The consequences of levelling vague allegation of fraud, without specification, in the pleadings has been dealt with by the superior Courts in the cases reported as Khan Muhammad v. Muhammad Din through L.Rs. (2010 SCMR 1351), Taj Muhammad Khan through L.Rs and another v. Mst. Munawar Jan and 2 others (2009 SCMR 598), Mst. Sahib Noor v. Haji Ahmad (1988 SCMR 1703) and Muhammad Haroon v. Mst. Razia Begum and 6 others (2001 CLC 810). If authenticity of the impugned judgments and decrees is adjudged on the touchstone of the afore-referred decisions of the Superior Courts, there leaves no ambiguity that no illegality has been committed by the Courts below while dismissing the suit of the petitioner-plaintiff and dissolving the marriage between the parties on the basis of Khula.

1. During the course of arguments, learned counsel for the petitioner took exception against the fact that the petitioner never resided with Respondent No. 3 in Valencia Town, Lahore as his wife. A cursory glance over the address of Respondent No. 3 mentioned in the plaint shows that the petitioner herself has provided address of Respondent No. 3 as that of Valencia Town, Lahore. According to Respondent No. 3, Nikah was performed by DW-3. Though Nikah Khawan (DW-3) was put to the test of lengthy cross-examination but the petitioner failed to have anything from his mouth suggesting that he did not perform Nikah between the parties.

2. Learned counsel for the petitioner argued with vehemence that time and place of performance of Nikah was not disclosed by Respondent No. 3. The said assertion of the petitioner stands negated from the fact that while replying to a suggestion, Nikah Khawan (DW-3) clarified that he performed Nikah at his residence. According to the practice in vogue, Nikahis either arranged in the house of the bride, mosque or any wedding hall where the parties choose to celebrate their wedding, thus, solemnization of Nikahin the house of DW-3 especially in the wake of the fact that it was run-away marriage, cannot be disbelieved.

3. As far as objection of the petitioner against performance of Nikah by DW-3 and completion of entries of Nikah Nama by his son, is concerned, suffice it to note that as per Section 5 of the Muslim Family Law Ordinance, 1981, even a person who is not a Nikah Registrar can facilitate performance of Nikah between the parties with the condition that he would bring the factum of Nikah to the Nikah Registrar concerned. Insofar as the case in hand is concerned, when the petitioner-plaintiff failed to impeach the conduct of the Nikah Khawan towards performance of Nikah between the parties, mere completion of entries of Nikah Nama by son of DW-3 cannot be used to believe that marriage between the parties did not take place especially when DW-3 specifically repelled the suggestion of the petitioner-plaintiff side that the petitioner never visited Burewala.

4. It is relevant to note over here that Mirza Arshad Ali, DW-4, during his cross-examination, clarified that he met the petitioner first time at the time of Nikah which fact also affirms that the said witness witnessed Nikah between the parties. Likewise, DW-6, while clarifying certain points regarding marriage between the parties, stated that on 26.11.2013 Respondent No. 3 was on leave from Bank. He further stated that both the parties put their signatures and thumb-impressions on Nikah Nama in his presence, thus, credibility of said witness cannot be doubted merely on the ground that he was not related to the petitioner especially when marriage between the parties was result of a love-affair.

5. It is imperative to note that the petitioner, in her affidavit, sworn at Burewala, attested by Mr. Imran Ali Sheikh Advocate (DW-5), stated that she contracted marriage with Respondent No. 3 on her own volition. The contents of the said affidavit also stands corroborated from the plaint filed by the petitioner at Tandlianwala. Had the said complaint not filed by the petitioner, she could easily move impugning veracity of the said complaint but admittedly till date no such move was made by her meaning thereby that the same was prima-facie filed by her but while succumbing to the pressure exerted by her family members, she had to file suit for jactitation of marriage out of which instant petition has emanated.

6. During the course of arguments, learned counsel for the petitioner has put much emphasis on the fact that contents of the Tenancy Agreement qua House No. 106-P, Valencia Town, Lahore do not coincide with the stance taken by Respondent No. 3 and his witnesses during evidence. In this regard, I am of the view that when solemnization of a valid marriage between the parties is established from the statements of DW-3, DW-4 & DW-6, the said fact assumes secondary role. Even otherwise, execution of said tenancy in favour of Respondent No. 3 lends support to his case that he managed residence for the petitioner at Lahore according to her status.

7. A bare perusal of order, dated 12.03.2014, passed by the learned Judicial Magistrate at Tandlianwala shows that the petitioner herself appeared before the Court and made cursory statement wherein she stated that she was never abducted by anybody rather she has solemnized marriage with Respondent No. 3 on her own volition and free will and started living with Respondent No. 3 as his wife from 26.11.2013. Admittedly, till date the petitioner has not made any effort for cancellation of said statement which, being part of the judicial record, carries presumption of correctness.

18. There is no denying the fact that initially in suit for restitution of conjugal rights, Respondent No. 3 contradicted on the point of solemnization of Nikahand departure but subsequently, with permission of the Court, he filed amended plaint rectifying certain errors/omissions. In this backdrop, contents of un-amended plaint cannot be used to rely upon the acclaimed contradiction on the part of Respondent No. 3 while filing Written Statement and Suit for Restitution of Conjugal Rights.

19. It is interesting to note that on the one hand the petitioner is of the view that somebody else was managed by Respondent No. 3 in her place at the time of marriage but on the other she opposed application of Respondent No. 3 for comparison of her signatures and thumb-impressions available on Nikah Nama. If the petitioner was sure about the fact that she did not sign/thumb marked Nikah Nama, she was supposed to give consent for their comparison to unveil the truth. Likewise, during evidence the petitioner side offered for virginity test of the petitioner but when Respondent No. 3 moved formal application in that regard, instead of fulfilling the undertaking given during the evidence, the petitioner opposed it tooth and nail which fact also supports plea of Respondent No. 3 that marriage between the parties was consummated.

20. During the course of arguments, learned counsel for the petitioner questioned authenticity of Nikah Nama on the ground that though the petitioner was resident of Lahore but her address in Nikah Nama was mentioned that of Burewala. The said stance of the petitioner stands negated from the contents of Nikah Nama inasmuch as according to entry against Column No. 4 of Nikah Nama, while incorporating permanent address of the petitioner, her temporary address was also mentioned. It was incumbent upon the petitioner to establish that on 26.11.2013 she was not available in Burewala rather she was present somewhere else but despite producing voluminous documentary evidence she failed to do so.

21. This Court has no sympathy with Respondent No. 3 but at the same time it has to decide the matter on the basis of available evidence. The entire evidence produced by the petitioner is suggestive of the fact that instead of claiming that no marriage was solemnized between the parties she took the plea that no Sharai marriage was solemnized between them. Marriages can be categorized as valid, invalid, void and voidable and the lacunas pointed out by learned counsel for the petitioner cannot be considered sufficient to render marriage between the parties as void or invalid as the irregularities, being of trivial nature, cannot be used to negate the contents of Nikah Nama which being a public document carries presumption of correctness.

1. It is very ironical to note that Respondent No. 3, during evidence as well as before this Court, produced photographs wherein the petitioner has been shown signing Nikah Nama and accompanying Respondent No. 3 in bridal suiting which is only possible between husband and wife but the petitioner side bluntly refused to recognize the petitioner in the said photographs.

23. The intimacy between the parties, as disclosed in the plaint, also lends support to the plea of Respondent No. 3 that the petitioner contracted marriage with her own but when faced with rigors of pressure of her family she opted to file suit for jactitation of marriage.

1. Now coming to request of learned counsel for Respondent No. 3 that since such marriages are rampant due to the material aired on electronic media, the media houses be bound down to censor vulgar, scandalous material ruining our society, I am of the view that since Pakistan Electronic Media Regulatory Authority (PEMRA) has been established by the Federal Government to cope with such complaints, it would be advisable for Respondent No. 3 or his counsel or any other member of the society to agitate said issue before the said forum.

2. As per law laid down by the Apex Court of the country in the case of Farhat Jabeen v. Muhammad Safdar and others (2011 SCMR 1073) concurrent findings of facts recorded by the Courts below cannot be upset in Constitutional jurisdiction until and unless they are proved to be perverse or result of arbitrariness which is not the position in the case in hand.

3. Now coming to the case-law, cited by learned counsel for the petitioner, I am of the view that the same is not applicable to the facts and circumstances of the instant case inasmuch as in the case of Matloob Hussain (Supra) the Apex Court of the country has held that when signatures/thumb-impressions of bride were obtained on Nikah Nama, after abduction, the same did not constitute valid marriage rather the same was to be dissolved through decree for jactitation of marriage whereas in the case in hand according to the petitioner herself the alleged Nikah Nama was result of fraud and misrepresentation without levelling any allegation of abduction. Similarly, in the case of Mst. Kausar Parveen (Supra) it was held that when Nikah Nama has been impugned by any side it cannot be treated as a public document but the Nikah in the said case between the parties was disbelieved mainly for the reason that the marginal witnesses of Nikah Nama were not produced by the husband whereas in the case in hand Respondent No. 3 not only produced marginal witnesses but also the Nikah Khawan concerned. In the cases of Qalandari Bibi and Ruqayya Bibi (Supra) it was held that bride can appear through an authorized agent. Since this Court is not reversing the findings of the Courts below on the said point, the said judgments are irrelevant. Now coming to the case of Hafiz Abdul Waheed (Supra) I have observed that in the said case a Larger Bench of this Court held that free consent of female is sine-qua-non for a valid marriage. Insofar as the case in hand is concerned, when signing and thumb marking of Nikah Nama by the petitioner was supported by her plaint filed at Tandlianwala, wherein her cursory statement was also recorded, it cannot be believed that her consent was not free especially when she was not only well-educated but also was of 27 years of age. In the case of Sardara and Allah Ditta through Legal Heirs (Supra) this Court held that in case where place, time and the person before whom the gift was made by the donor is missing the gift mutation cannot be

sanctified whereas in the case in hand, the stance of the Respondent No. 3 regarding valid marriage stands endorsed from the contents of the Nikah Nama coupled with the statement of the Nikah Khawan and marginal witnesses in addition to the statement made by the petitioner herself in her complaint filed at Tandlianwala. Coming to the case of Mushtaq Ahmed Malik (Supra) this Court declared that voluntary portion of statement of a witness cannot be used to decide a question whereas in the matter in hand, though most of the witnesses also made voluntary statements but the Courts below came to unanimous conclusion that valid marriage between the parties was established from the evidence, conduct and surrounding circumstances. In the case of Mst. Ramzan Bibi (Supra), the authenticity of the Nikah was discarded inter alia for the reasons that witnesses of Nikah Nama were not produced which is not the position in the case in hand.

1. For what has been noted above, I see no force in this petition which is accordingly dismissed with no order as to costs.

(Y.A.) Petition Dismissed

PLJ 2020 Lahore 134

Present:Ali Baqar Najafi, J.

FIRDOUS SHAFIQ--Petitioner

versus

INSPECTOR GENERAL POLICE etc.--Respondents

W.P. No. 232741 of 2018, decided on 29.11.2019.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointment as traffic warden--Death in a road side accident--Lodging of FIR--Filling of application by widow for declaration as shaheed--Appointment of D.S.P. as inquiry officer--Approval as shaheed--Issuance of letter by additional I.G. for non-declaration of shaheed--Challenge to--Under Notification No. 7641/W-III, dated 30.05.2015, officer/official killed in encounters, including bomb blast, riots, watch and ward duties but not death caused in accident shall be awarded Rs. 20,00,000/- as compensation--Admittedly, Muhammad Shafiq had died during watch and ward duties in an accident which was reported under Section 302 PPC, therefore, it was not an accidental death and in my humble view, he is entitled to be declared as “Shaheed”--Petition was allowed. [P. 137] A

Raja Rafaqat Ali, Advocate for Petitioner.

Mr. Muhammad Ejaz, Assistant Advocate General Punjab for State.

Date of hearing: 29.11.2019.

Order

Through this constitutional petition, the petitioner has sought a direction to Respondent No. 1 to produce the record of Mr. Muhammad Shafiq TWF/367 (late) with a further prayer to set-aside the order/letter dated 20.07.2018 issued by Respondent No. 1 whereby the late husband of the petitioner was not declared as “Shaheed” being an accidental case.

1. Brief facts giving rise to the filing of this constitutional petition are that on 19.06.2006 the petitioner’s husband was appointed as Traffic Warden (BS.14) in District Faisalabad and served the department about 11 years. On 11.02.2017 the husband of the petitioner while on duty met an accident with a damper and succumbed to the injuries for which an FIR No. 182/2017 was registered at Police Station Millat Town, District Faisalabad. The deceased left three daughters, two sons and one widow as his legal heirs. The petitioner submitted two applications to Respondent No. 1 & 2 respectively for declaration of deceased as “Shaheed” upon which a DSP was appointed as inquiry officer who on 28.03.2017 approved that the deceased (husband of the petitioner) was a “Shaheed”. The said letter was forwarded by Respondent No. 4 to Additional Inspector General of Police. The petitioner also submitted two other applications for declaring her husband as “Shaheed” upon which a SSP was appointed as Inquiry Officer who also held the husband of the petitioner as “Shaheed” and recommended his case for package # 3 for the welfare of his family. Thereafter the petitioner submitted all the required documents to the concerned quarters. On 29.01.2018 Respondent No. 2 sent a report to Respondent No. 1 clearly mentioning that the husband of the petitioner was a “Shaheed” but the Additional Inspector General of Police, Finance & Welfare Punjab, Lahore vide impugned letter awarded the compensation to the tune of Rs. 6 lac and not declared the husband of the petitioner as “Shaheed”, hence this petition.

2. Arguments heard. File perused.

3. A perusal of the file reveals that Muhammad Shafiq served the department for 11 years and 01 month who died on 11.02.2017 due to an incident took place near Bhaiwala Graveyard, Jhumra Road, Faisalabad and as per the report of Punjab Emergency Service (Rescue 1122), Faisalabad. Dated 04.04.2017 it was a road traffic accident on 11.02.2017 in which said Muhammad Shafiq expired and Muhammad Ali son of Nasrullah was injured. As per the detail, a dumper bearing registration No. FDJ-2886 was coming towards Dry Port which hit said Muhammad Shafiq, Traffic Warden-367. FIR No. 182/2017, dated 11.02.2017, under sections 302, 337- G, 279 PPC was registered at Police Station Millat Town, Faisalabad. According to the postmortem report, the deceased sustained as many as 11 injuries, including lacerated wound 3 cm x 1 cm below chin and abraded area 26 cm x 7 cm on right side of face and right side of neck( facial bones fractured), abrasion 2cm x 2 cm on right eye brow outer part (skull bones fractured frontal side), hence ribs were also fractured as a result of which he died on the spot. The incident report dated 11.02.2017 shows that dumper driver managed to escape from the scene. As per the death certificate Muhammad Shafiq died an unnatural death. Vide letter dated 24.04.2017, driving license No. 247336/LHR/82 in the name of Muhammad Sharif, alleged driver of the dumper, was found bogus/fake for which FIR No. 821/2017, dated 12.07.2017, under sections 420, 468, 471 PPC was registered at Police Station Millat Town, Faisalabad. Muhammad Shafiq was survived by his widow Fardous Shafiq, daughters Kiran Shahzadi, Zunaira Jabeen, Hira Shahzadi and sons Muhammad Ahad Shafiq and Muhammad Fahad Shafiq. A succession certificate was also issued in their names. The widow of Muhammad Shafiq namely Fardous Shafiq/petitioner filed an application before the Inspector General of Police Punjab, Lahore dated 08.03.2017 to declare her late husband as “Shaheed”. On 19.04.2017, the Chief Traffic Officer, Faisalabad recommended that since Muhammad Shafiq had died in the line of duty in best department interest, therefore, be declared as “Shaheed”. The City Poice Officer, Faisalabadvide his letter dated 26.01.2018 also recommended that Muhammad Shafiq should be declared as “Shaheed”. A report was prepared by the Senior Superintendent of Police, Investigation, Faisalabad/Inquiry Officer who also recommended for his declaration as “Shaheed” since he embraced death while performing his official duties actively on the fateful date and time and was intentionally hit by the driver Muhammad Sharif with his dumper. The Regional Police Officer, Faisalabad vide his letter dated 29.01.2018 had also recommended to declare him as “Shaheed”, therefore, was entitled to the grant of compensation under Notification No. 7641/W-III, dated 30.05.2015. However, surprisingly on 20.07.2018, the Additional Inspector General of Police, Finance & Welfare Punjab, Lahore, on the basis of meeting dated 28.05.2018 did not declare him as “Shaheed” and had stated that he met with an accidental death and only six lacs rupees were recommended under

Rule 14(F) of Punjab Police Welfare Fund Rules, 2016. In the meeting dated 28.05.2018 no reasons whatsoever were given to disagree with the inquiry report so far conducted recommending declaration of Muhammad Shafiq as “Shaheed”.

5. Under Notification No. 7641/W-III, dated 30.05.2015, the officer/official killed in encounters, including bomb blast, riots, watch and ward duties but not death caused in accident shall be awarded Rs. 20,00,000/- as compensation. Admittedly, Muhammad Shafiq had died during the watch and ward duties in an accident which was reported under Section 302 PPC, therefore, it was not an accidental death and in my humble view, he is entitled to be declared as “Shaheed”.

1. In view of the above discussion, this writ petition is allowed and Muhammad Shafiq, husband of the petitioner is declared as “Shaheed” with all consequential benefits.

(Y.A.) Petition Allowed

PLJ 2020 Lahore 137

Present:Asim Hafeez, J.

GHULAM HURR and 2 others--Petitioners

versus

DISTRICT COLLECTOR BHAKKAR, etc.--Respondents

W.P. No. 11875 of 2014, decided on 30.12.2019.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan (Administration of Evacuee Property) Ordinance, 1949, Ss. 3 & 18--Purchase of evacuee trust property--Unregistered sale-deed--Application for issuance of certificate regarding interence name of purchaser in revenue record--Application was allowed--Property was allotted against claim--Cancellation of allotment--Filling of suit for declaration and against order of cancellation--Dismissed for non-prosecution--Filling of application under Section 12(2) of C.P.C.--Allowed--Bona fide purchase--Determination of rights--Jurisdiction to declare property as non-evacuee--Judicial review--Jurisdiction--Direction to--It is for applicant to establish that property was not owned by evacuee person, hence, it was not evacuee property for purposes of relevant Settlement Laws and disposal by Rehabilitation Authorities--Custodian has no jurisdiction or authority to declare property as non-evacuee, merely because it was purchased by a Muslim vendee from evacuee person, which admittedly was after terminus quo date--Custodian cannot alter, change or disregard legislative intent and treat property as non-evacuee when it assumed status of evacuee property in light of conditions prescribed--Some material facts require reiteration to discredit alleged claim of petitioners--Despite erroneous declaration extended by Custodian, deed of sale was not registered – nor it became eligible for registration without seeking confirmation--Alleged rights were not recorded in revenue record for reasons best known to Predecessor-in- interest of petitioners--No claim qua possession or alleged rights was raised till filing of constitutional petition - W.P. No. 3497 of 2010--There was no plausible justification for delayed fling of application under section 18 of Ordinance-1949 – apparently filed in year 1954 - and deliberate withholding of information from Custodian regarding possession, control or management of evacuee property, as essentially required in terms of section 8 of Ordinance-1949-- Custodian while making declaration has not dilated upon issue of limitation, which is crucial matter as elucidated in judgment--In these circumstances, it is clear that declaration by Custodian, declaring property as non-evacuee property, in terms of orders dated 30.10.1956 and 23.01.1957 - by Deputy Custodian and Additional Custodian Evacuee Property, respectively – was illegal, void and of no legal effect--Claim of petitioners – regarding transaction of sale dated 24.06.1947 - was devoid of any lawful basis and said transaction neither creates nor confer any right qua property, unless statutory conditions were fulfilled--In absence of grant of confirmation, no rights can be claimed qua property, which remained evacuee for all intent and purposes and vests in Government after repeal of Evacuee and Settlement Laws--Order dated 30.10.1956 and 23.01.1957 are declared as void, of no legal effect and devoid of lawful authority--Crux of submissions of Respondents No--7 to 12 are that their predecessor-in-interest [Aslam Khan] had validly acquired by property for consideration, who allegedly had no knowledge of order of cancellation of allotment--It is alleged that ownership rights of Aslam Khan were affirmed through decree of Civil Court dated 23.02.1997-- Elemental question is that whether a bona- fide purchaser can claim any alleged rights in property when original allotment was cancelled being bogus, and such cancellation was unsuccessfully challenged by said allottee--Judgments referred by learned counsel for petitioners regarding absence of jurisdiction are distinguishable and not apt for circumstances of this case--There is no cavil that any act in law, which is nullity, coram-non-judice or devoid of jurisdictional competence can be impugned before Civil Court, including an action of Settlement Officer passed after repeal of Evacuee and Settlement Laws--In this case there is no question of cancellation of allotment after repeal of Evacuee and Settlement Laws, which fact alone brings order of cancellation within jurisdictional domain of hierarchy created upon repeal of Laws-- Coram-non-judice or devoid of jurisdictional authority-- Entitlement/locus standi of Respondents No. 7 to 12 to claim alleged rights in property was lacking, hence, Civil Court has no jurisdiction to pass decree dated 23.02.1997--Court in exercise of judicial review jurisdiction cannot ignore any illegal and unlawful exercise of jurisdiction by Court, merely for reason that such decree or order is not directly challenged though subject matter of judicial review in collateral proceedings--And failure to exercise judicial review jurisdiction, when it was essentially required to rectify apparent jurisdictional defect in proceedings, would tantamount to aiding injustice, unfairness and to perpetuate retention of illegal gains--Guidance is solicited from ratio of decision in cases reported as cancellation of allotment dated 17.5.1976--Respondents No. 7 to 12 are not eligible to claim any alleged rights in property by virtue of judgment and decree dated 23.02.1997--Claim of petitioners with respect to property is already declared as void and of no legal effect--I hold that property in question vests in Government and same is required to be dealt with in accordance with mandate of section 3 of Evacuee property and Displaced Persons Laws (Repeal) Act, 1975--Petition was dismissed.

[Pp. 144, 145, 151, 152, 153, 155 & 156] A, B, C, D, E, F,

G, H, I, J & K

Ref. 1988 SCMR 1289; 2002 SCMR 829; 2003 SCMR 549.

Mr. Naveed Shaheryar Sheikh, Advocate assisted by Ms. Humaira Bashir Chaudhry, Advocate for Petitioners.

Rana Muhammad Naeem Khan, Advocate for Respondents No. 7 to 12.

Sardar Qasim Hassan Khan, Assistant Advocate- General for Respondents No. 1 to 6.

Date of hearing: 22.10.2019.

Order

This Constitutional petition is directed against order dated 24.10.2012 (impugned order), by the Additional District Collector, Bhakkar (Respondent No. 1), whereby application/representation of the petitioners was not entertained, filed after dismissal of Constitutional Petition No. 3497 of 2010. Respondent No. 1 had advised the petitioners, in view of the facts and circumstances of the case, to approach concerned Notified Officer Sargodha Division for redressal of alleged grievances. Through this petition, petitioners have sought declaration of illegality against the impugned order and implementation of the orders dated 30.10.1956 and 23.01.1957 of Deputy Custodian and Additional Custodian Evacuee Property, respectively, in the revenue record.

1. It is noted that petitioner had earlier filed W.P. No. 3497 of 2010, which was dismissed in following terms:

2. “It is not understandable why petitioners remained silent for a long period for implementation of Custodian orders. If petitioners have any case, it requires recording of evidence which exercise could not be taken in the constitutional jurisdiction of this Court and as such petitioners may approach the appropriate forum, if so desired, for redressal of their grievance.

3. “In view of above, this petition is not maintainable and consequently is dismissed’.

4. Briefly the facts necessary for adjudication of the lis at hand, are that deceased Ghulam Hussain (predecessor-in-interest) of the petitioners claimed to have had purchased land measuring 37 Kanals – Khata No. 34, Khatuni No. 97, Khasara No. 517/min, situated at Mauza Bhakkar Daggar (hereinafter referred as “property”) from Thakardas son of Moti Ram (Evacuee person) through unregistered deed of sale dated 24.06.1947 – which deed was not placed on record of this case. The case of the petitioners is that their predecessor-in-interest desired recording of factum of purchase in the revenue record in its name, which required requisite certificate. The deceased applied by filing application under section 18 of the Pakistan (Administration of Evacuee Property) Ordinance (XV) of 1949 (referred hereinafter as Ordinance-1949), for seeking certificate and declaration that status of property was not evacuee, which application was allowed on 30.10.1956 by Deputy Custodian, and confirmed by Additional Custodian on 23.01.1957. The alleged claim of predecessor-in-interest of the petitioners remained obscured, till the filing of W.P.No. 3497 of 2010. In the meantime, the property was allotted to Akbar Ali and Muhammad Ismail against their alleged claims in terms of RL-II No. 10, dated 23.10.1962; in the share of 28 Kanals and 06 Marlas and 08 Kanals and 14 Marlas, respectively. Later on, allotment was declared as bogus and cancelled vide order dated 17.05.1976 by Additional Commissioner Land Revenue – having powers of Chief Settlement Commissioner Sargodha – apparently on petition filed by one Ishfaq Ahmad on 26.06.1974 (before the repeal of Evacuee and Settlement Laws with effect from 1st July 1974). It is noted that original allottee Akbar Ali filed suit for declaration and impugned the order of cancellation, which suit was dismissed for non-prosecution on 28.03.1978. The Respondents No. 7 to 12 – claimed to be the legal heirs of deceased Muhammad Aslam, who allegedly acquired property from original allottee (Akbar Ali) measuring 18 Kanals 6 Marlas through decree of the Court in terms of Mutation No. 45 dated 29.07.1984 and Mutation No. 53 dated 03.01.1985. It is alleged by the Respondents No. 7 to 12 that their predecessor-in- interest, Aslam Khan, filed civil suit on 24.01.1995, which was decreed ex-parte on 23.02.1997, having the consequence of setting-aside order of cancellation of allotment dated 17.05.1976 and affirming alleged ownership of decreased Muhammad Aslam. The petitioners impugned the order of dismissal of representation – dated 24.10.2012 by Respondent No. 1 through this petition, which was earlier allowed vide judgment dated 20.06.2014, and later on said judgment was set-aside on 11.03.2015, while allowing application of Respondents No. 7 to 12, filed under Section 12(2) of the Code of Civil Procedure, 1908 (‘the Code’). Respondents No. 7 to 12 were not impleaded as party when this petition was filed.

5. Learned counsel for the petitioners contends that Notified Officer had no jurisdiction to address the grievance of the petitioners, as the property was not evacuee, as already declared by the Custodian on 23.01.1957. Per learned counsel, Respondents No. 7 to 12 are not eligible to claim any right in the property by virtue of ex-parte decree in favour of deceased Aslam Khan, as the civil Court lacked Jurisdiction in terms of section 41 of the Pakistan (Administration of Evacuee Property) Act (XII) of 1957 (referred hereinafter as Act). Further submits that original allottee had earlier filed suit, which was dismissed and later on, subsequent vendee, Aslam Khan was not entitled to file suit in the year 1995 to question cancellation of allotment order of 17.05.1976. Adds that after declaration by the Custodian, the property was not available for allotment by the Rehabilitation Authorities under Settlement laws. Learned counsel referred to the judgments reported as “Syed Wajih-ul-Hassan Zaidi v. Government of Punjab and others” (1996 SCMR 1901), “Shaukat Hayat Jumani v. The Province Of Sindh through Secretary, Rehabilitation Department and others” (1991 SCMR 580), “Muhammad Anwar and 2 others v. Khuda Yar and 25 others” (2008 SCMR 905), Sh. Shajar Hussain v. Haji Abdul Majeed and others” (2006 SCMR 913), “Muhammad Sadiq (decd.) through L.Rs. and others” (2011 SCMR 239), “Ahmed and another v. Muhammad Shafi and others” (1982 SCMR 68), “Member BOR Punjab and another v. Mst. Siddiqan through L.Rs. and others” (2015 SCMR 1721) and “Muhammad Din and 8 others v. Province of The Punjab through Collector and others” (PLD 2003 Lahore 441).

6. Learned counsel for Respondents No. 7 to 12 submits Civil Court has jurisdiction to entertain order of cancellation of allotment, as it was passed without hearing the person having beneficial interest in the property. Submits that decree of 23.02.1997 by the Civil Court had the effect of set-aside order of cancellation of allotment, which decree was not challenged and still holds field. Adds that predecessor-in-interest of Respondents No. 7 to 12 was a subsequent purchaser of property for consideration, who being bona-fide purchaser had no knowledge of order of cancellation of allotment, and same challenged it upon gaining knowledge. Adds that allottee was in possession since 1962 and thereafter respondents have uninterrupted possession of the property.

7. Arguments heard. And available record perused.

8. The questions raised inextricably involve determination of respective rights, allegedly claimed by the parties, qua the property – each claiming property in its own exclusive right. The existence and legitimacy of the claim of the Respondents No. 7 to 12 – having its alleged genesis in allotment made in terms of RL-II in the year 1962 and decree of the civil Court – was inter-alia linked with the question of determination of validity and legitimacy of so called declaration by the custodian declaring property as non-evacuee, as claimed by the petitioners. In view of the facts narrated and interplay of competing claims, undoubtedly Government is a major stakeholder, the one which is least concerned. It is evident that over-lapping rights and competing claims are deeply entwined and same, cannot, conveniently be adjudicated upon or determined in isolation or separately, therefore, all the claims against the property are adjudicated upon and determined through this judgment.

9. Learned counsel for the petitioners emphasized that allotment in the year 1962 was declared bogus, which order of cancellation of 15.07.1976 could not be impugned before the Civil Court under Section 41 of Act, 1957, hence decree dated 27.02.1997 suffered from jurisdictional defect and was of no legal effect. It is contended that declaration can be made against a void decree in this petition while determining the questions involved. I, first take the issue of legitimacy of claim of the petitioners.

10. The petitioners had sought implementation of declaration by the Custodian, which necessitates determination that whether such declaration constitutes valid and lawful exercise of jurisdiction by the Custodian. The declaration, by the Custodian in exercise of powers under section 18 of Ordinance-1949, declared that property was not evacuee property. Before determining the legality of such declaration in terms of section 18, ibid, it is expedient to reproduce section 18 of the Ordinance-1949, which reads as:

“18. Claims by interested person.--(1) Any person claiming any right or interest in any property treated by the Custodian or a Rehabilitation Authority as evacuee property may prefer a claim to the Custodian on the ground that,--

(a) the property is not evacuee property, or

(b) his interest in the property has not been affected by the provisions of this Ordinance.

(2) An application under subsection (1) shall be made within the prescribed period being a period of not less than thirty days from the prescribed date.

(3) On receiving an application under subsection (2), the Custodian shall hold a summary in inquiry in the prescribed manner, and after taking such evidence as may be produced shall pass an order, stating the reasons therefore, rejecting the application or allowing it wholly or in part on such terms and conditions as he thinks fit to impose”.

[Emphasis supplied]

1. In terms of section 18 of Ordinance-1949, any person claiming alleged right or interest in the property – treated by the Custodian or Rehabilitation Authority as evacuee property – may file a claim and seek declaration that said property was not evacuee property or that Settlement Laws does not affect alleged right or interest therein. The Custodian may, after following the procedure provided therein, either accept the application or reject it, which decision would per-se determine the status of the person and the property, including alleged rights claimed therein. The expressions ‘evacuee’ and ‘evacuee property’ were defined in terms of sub-section (2) and sub-section (3) of section 2 of Ordinance, 1949. It is expedient to examine those, which are reproduced hereunder as:

(2) “evacuee” means any person who--

(i) on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances, on or after the first day of March, 1947, leaves or has left any place in the territories now comprising Pakistan any place outside those territories, or

(ii) acquires or has acquired, on or after the aforesaid date, in any manner whatsoever, any right to or interest in or benefit from any property which is treated as evacuee property under any law for the time being in force in India, or in any area occupied by India, or

(iii) is resident in any place in the territories now comprising India or in any area occupied by India and who for that reason is unable to occupy, supervise or manage in person his property in Pakistan or whose property in Pakistan has, whether wholly or partially, ceased to be occupied, supervised, or managed by any person, or is being occupied, supervised or managed by an unauthorized person;

(3) “evacuee property” means any property in which and evacuee has any right or interest, or which is held by or for him in trust, and includes--

(a) any right of interest in joint Hindu family property which would accrue to the evacuee upon the partition of the same, or

(b) property obtained from an evacuee after the twenty-eighth day of February, 1947, until confirmed by the Custodian, but does not include-

(i) any movable property in the immediate physical possession of any evacuee, or

(ii) any property belonging to a joint stock company the head office of which was situated, before the fifteenth day of August, 1947, in any place in the territories now comprising India, and continues to be so situated after the said date;

[Emphasis underlined]

11. A literal interpretation of definition of evacuee property would manifest that any property not coming within the scope of sub-section (3) of section 2 of Ordinance -1949 would be treated and deemed as non- evacuee property, wherein evacuee person has no right or interest after 28th February, 1947. It is for the applicant to establish that property was not owned by evacuee person, hence, it was not evacuee property for the purposes of relevant Settlement Laws and disposal by the Rehabilitation Authorities. The predecessor-in- interest of the petitioners had claimed rights in the property by virtue of deed of sale dated 24.06.1947, allegedly executed by Thakardas in favour of Ghulam Hussain, which date of transaction was after the cut-off date as indicated in clause (b) of sub-section 3 of section 2 of Ordinance of 1949 – which was identified as 28th Day of February 1947. In view of the aforesaid, the property was ‘evacuee property’ for all intent and purposes, when interpreted in wake of definitions provided and it was for the petitioners to show that it was not so.

12. Learned counsel for the petitioners pleaded that property in question was not evacuee property as declared by Custodian, as it was purchased / acquired by their predecessor-in-interest – who was Muslim - through deed of sale, therefore, the property was non- evacuee property, and not available for allotment by Rehabilitation Authorities. This argument is misconceived and fallacious. The transaction of sale simplicitor, admittedly conducted on 24.06.1947 with evacuee person – which conspicuously was after the cut-off date, i.e. 28th February 1947 -, would not change the status of the property from evacuee to non- evacuee. The property has assumed evacuee status on 1st March 1947 and same stood vested in the Custodian by virtue of section 6 of Ordinance of 1949, which reads that “All evacuee property shall vest and shall be deemed always to have vested in the custodian with effect from the First Day of March 1947”. The Custodian has no jurisdiction or authority to declare the property as non-evacuee, merely because it was purchased by a Muslim vendee from evacuee person, which admittedly was after the terminus quo date. The petitioners had not disputed the factum of purchase from evacuee person and failed to plead reasons that how property was non-evacuee property. The Custodian cannot alter, change or disregard the legislative intent and treat the property as non-evacuee when it assumed the status of evacuee property in the light of the conditions prescribed. Mere declaration, obtained by the alleged purchaser that he was non-evacuee, would not, per-se the property exclude from the category of evacuee property. Reference is made to decision in the case of “Azizuddin v. Muhammad Ismail and others” (1985 SCMR 666), relevant portion whereof is reproduced hereunder as:

“The appellant, as already mentioned, had moved the Custodian authorities first in 1949 for confirmation of the sale of the land in his favour and again in 1953 for the grant of a certificate permitting registration of the sale and in both proceedings the Additional Custodian had held that the vendor not being evacuee, the question of confirmation of the agreement of sale did not arise. However, the decision given by the Additional Custodian cannot be pressed into service because if the owner be held to be non-evacuee the same would not per se be sufficient to exclude his property from being treated as evacuee property as was held by the Court in Hajiran Sughra v. District Judge & Settlement Commissioner 1969 SCMR 686”.

[Emphasis supplied]

Nothing was alleged or pleaded that property was erroneously or illegally treated as evacuee property in violation of the law. And merely, the acquisition of the evacuee property – after 28th February 1947 – from an evacuee – who left the territories of Pakistan after 1st March 1947 – would not entitle the petitioners to seek declaration qua status of the property under section 18 of Ordinance-1949.

1. Analysis of other provisions of Ordinance-1949 reveals that restrictions were placed on transfer of evacuee properties under section 16 of Ordinance-1949 [which restrictions are distinguishable from the prohibitions referred to in section 15 of Ordinance-1949]. Upon perusal of section 16, ibid, it is evident that creation of any right or interest in the property by evacuee on or after 1st March 1947 would be valid and effective only, once confirmation was granted by the Custodian. It implied that no transaction of transfer of rights in evacuee property, on after or 1st March 1947, would create any right unless it was confirmed accordingly, upon fulfilment of requirements provided under section 16 of Ordinance-1949. And such specific confirmation enables the beneficiary to seek registration of the instrument in accordance with the provisions of Registration Act 1908, in terms of section 17 of Ordinance - 1949. It is expedient to reproduce Sections 16 and 17 of Ordinance - 1949, considering their relevance for the purposes of adjudication of the lis at hand, which read as:

“16. Restriction on transfer by evacuees.--(1) No creation or transfer of any right or interest in or encumbrance upon any property made in any manner whatever by an evacuee or by any person in anticipation of his becoming an evacuee or on behalf of the evacuee or such person on or after the first day of March, 1947, shall be effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party unless such creation or transfer is confirmed by the custodian.

(2) An application for confirmation of such creation of a right or encumbrance or transfer as aforesaid may be made to the Custodian within the prescribed period by any party thereto, or by any person claiming under or lawfully authorized by such party.

(3) The Custodian shall hold a summary inquiry into the application in the prescribed manner, and--

(a) shall reject the application if the creation or transfer--

(i) was or is prohibited under any law for the time being in force, or

(i) was not or is not covered by a certificate from the prescribed income-tax authority to the effect that no objection existed or exists to such creation or transfer;

(b) may reject the application if he is of opinion that the creation or transfer--

(i) was not or has not been entered into in good faith or for adequate consideration, or

(ii) ought for any other reason not to be confirmed.

(4) If the application is not rejected under sub-section (3), the Custodian may confirm the creation - of transfer either unconditionally or subject or subject to such terms and conditions as he thinks fit to impose.

1. Registration of documents.--(1) Notwithstanding anything contained in the Registration Act, 1908 (XVI of 1908), or in any other enactment for the time being in force, no registering officer shall register or accept for registration any document relating to any immovable evacuee property unless a certificate by the custodian permitting registration is produced, and such certificate may contain such conditions as the Custodian may see fit to impose and shall have effect subject to those conditions.

(2) If any question arises whether any document presented for registration relates to immovable evacuee property or not, the registering officer shall direct the parties thereto apply to the Custodian for a certificate that the document does not related to any immovable property, and the registering officer shall not accept for registration or register such document without such certificate.

1. The scope, ambit and object of both sections 16 and 18 of Ordinance of 1949 are different, independent and each was attracted to a particular set of facts, circumstances and peculiar situation. An applicant’s desire or choice qua determination of its rights by virtue of transaction of sale would not simply trigger the assumption or exercise of jurisdiction by the Custodian under section 18 of Ordinance - 1949 when there was no ground for making declaration qua status of the property as non-evacuee. If discretion is conferred on the applicant to pick between sections 16 or 18 of Ordinance – 1949 every one’s, choice would be section 18, obviously to avoid performance of conditions in terms of section 16, ibid. In this case, the predecessor- in-interest of the petitioners were required to seek confirmation qua the transaction of transfer of rights in the evacuee property, acquired from evacuee after 1st March 1947, under section 16, ibid, subject to fulfilment of conditions prescribed. And if they seek declaration qua status of the property, they were required to plead reasons and grounds for declaration that property was not evacuee, which were conspicuous by their absence. The case of the petitioners fall within section 16 and not under section 18 of Ordinance – 1949. Unless alleged Transfer of rights by the evacuee was confirmed, no registration was permissible under section 17 of Ordinance-1949 – which, otherwise was essential as the deed of sale was unregistered and remained so, despite lapse of statutory time provided for registration under the Registration Act 1908 [which default per-se renders the deed of sale ineffective and void]. The significance of section 16 cannot be undermined by extending superior role to section 18, which cannot be treated as substitute or replacement of section 16 of Ordinance-1949, each having distinctive contours and objects. It is imperative to meet the requirements/limitations under section 16, before seeking confirmation qua creation or transfer of rights in the property – which statutory compliances cannot be avoided in the garb of so-called declaration under section 18 of Ordinance-1949. It appeared from perusal of orders dated 30.10.1956 and 23.01.1957, by Deputy Custodian and Additional Custodian Evacuee Property, respectively that no such certificate, as required under clause (ii) of sub-section (3) of section 16 of Ordinance – 1949, was produced nor alluded to while deciding the matter. In case of failure to produce such certificate(s), the application was liable to an outright rejection. The issue is that whether any such certificate was required with reference to Agricultural Property, as Section 3 of Transfer of Property (Pakistan) Ordinance, IV of 1947 provided exemption qua the agricultural properties. It is expedient to reproduce Rule 12 of the Administration of Evacuee Property Rules, 1950 [framed under section 46 of Ordinance-1949 and published on 25th August 1950] and section 3 of the Transfer of Property (Pakistan) Ordinance, IV of 1947 to address the issue, which read as:

“Rule 12 of Administration of Evacuee Property Rules, 1950,--

“12. Procedure for confirmation under section 16.

(1) An application for confirmation under subsection (2) of section 16 shall contain full particulars of the property, the name of the transferor and his present address, if known, the nature of the transaction sought to be confirmed, and the consideration paid or deferred together with the date or dates on which paid.

(2) The application shall be presented within sixty days of the date of publication of these rules or the date of execution of the instrument effecting the transaction sought to be confirmed, whichever be later, and any period during which the completion of such transaction is prohibited by or under any law for the time being in force in the area in which the property is situate shall be excluded.

(3) The application shall be accompanied by a certificate in terms of section 3 of the Transfer of Property (Pakistan) Ordinance, 1947 from the Inspecting Assistant Commissioner of Income-tax of the area to which the property is situate or such other officer as may be duly appointed in this behalf, or in the absence of such certificate an affidavit declaring why such certificate is not attached, and by a duly attested copy of the instrument effecting the transaction sought to be confirmed and of such other documents as may be relied upon, and shall bear a Court-fee stamp of rupees twenty or rupees ten according as the value of the consideration does or does not exceed rupees ten thousand.

(4) Where an application for confirmation is pending on the date of publication of these rules, the applicant, if necessary, shall amend the application and make up any deficiency in Court-fee stamp in accordance with this rule within thirty days from such date, unless the Custodian, on sufficient cause being shown, extends the said period.

(5) The Custodian shall cause a notice to be served on the respondent, and the Rehabilitation Authority of the area in which the property is situate, and on any other person likely to be interested in or affected by the result of the application, and may also cause a public notice to be published in a newspaper at the expense of the applicant”

Section 3 of the 1947 Ordinance;

“No Registering Officer, Revenue Officer, Custodian or other officer appointed to deal with property shall register any document, relating to property other than agricultural land, which is required to be registered under the provisions of clause (a), (B), (c) or (e) of subsection (1) of section 17 of the Registration Act, 1908 unless it is certified by an Income-tax Officer, in respect of every person whose right, title or interest in the property is or will be transferred, assigned , limited or extinguished under the terms of the document, either that such person is not liable to taxation under the Income-tax Act, 1922, the Excess Profits Tax Act, 1940 or the Business Profits Tax Act, 1947 or that he has either paid or made satisfactory provision for the payment of all existing or anticipated liabilities under any of the said acts.”

[Emphasis supplied]

1. The requirement of procuring certificate for the purposes of seeking confirmation in terms of section 16 of Ordinance - 1949 [which corresponds to section 17 Pakistan (Administration of Evacuee Property) Ordinance – 1956 and section 20 of Act – 1957] – notwithstanding agricultural character of the property – was reiterated in the judgment reported as “Haji Ashfaq Ahmed Khan and 4 others” v. The Custodian, Evacuee Property (Pakistan), Karachi and 10 others” (PLD 1973 Supreme Court 134), relevant portion whereof is reproduced hereunder as:

“It is correct to say that a certificate under section 3 is not required for registration of a sale deed of agricultural land, but it does not follow that such a certificate was not necessary for confirmation under section 20 of the Administration of Evacuee Property Act XII of 1957. It becomes clear by referring to rule 12(3) of the Administration of Evacuee Property Rules, 1950, which provides that the application for confirmation of transfer of an evacuee property shall be accompanied by a certificate as in terms of section 3 of the Transfer of Property (Pakistan) Ordinance, IV of 1947 from the Inspecting Assistant Commissioner of Income-tax of the areas in which the property is situate or in the absence of a certificate an affidavit declaring why such certificate is not attached. The certificate has therefore to be in terms of section 3, namely, that the person whose right, title or interest in the property is or will be transferred, assigned, limited or extinguished under the terms of the document is not liable to taxation under the Income-tax Act, 1922, the Excess Profits Act, 1940, or the Business Profits Act. 1947, or that he has either paid or made satisfactory provision for the payment of all existing or anticipated liabilities under any of the said Acts. However, if section 20 or rule 12(3) required that a No Objection Certificate under section 3 of the Transfer of Property (Pakistan) Ordinance, IV of 1947 shall be produced then the exception made in that section in respect of agriculture land would have been meaningful. It is further evident that requirement in section 20(3) (a) (ii) for production of a No Objection Certificate by the prescribed Income-tax authority is confined to evacuee property and operates independently of the provisions of section 3 of the Transfer of Property (Pakistan) Ordinance, 1947, which apply to all kinds of properties. The words “in terms of” in rule 12(3) must, therefore, be given the meaning that the certificate shall be in the form laid down in section 3 as provided for in the Administration of Evacuee Property Laws and not in pursuance to the authority vested by Ordinance or in the Inspecting Assistant Commissioner of Income-tax, etc. We accordingly concur with the learned Judges of the High Court that the Additional Custodian was justified in refusing to confirm the sale of agricultural land comprised in the sale deed dated 31-7-1948 in favour of Haji Siraj Ahmad for non- production of the requisite No-Objection Certificate.

1. The significance of certificate was reaffirmed in the judgment reported as “The Commissioner of Income-Tax N.C.A. Circle, Karachi and another v Haji Ashfaq Ahmad Khan and 10 others and Muzaffar Ali (through his heirs)” (PLD 1973 Supreme Court 406), relevant portion whereof is reproduced hereunder as:

“It appears from the foregoing that certificate from the competent Income-tax Officer is required for two purposes. One for the valid registration of the relevant deed under the Registration Act, 1908, and the other for enabling the Custodian to consider the question of confirmation of the transaction under section 16 of the 1949- Ordinance corresponding to section 20 of the 1957-Act. Furthermore that a further certificate from the Custodian is necessary to enable the registering officer to register a deed required to be registered under the Registration Act, 1908.”

17. Some material facts require reiteration to discredit alleged claim of the petitioners. Despite erroneous declaration extended by the Custodian, the deed of sale was not registered – nor it became eligible for registration without seeking confirmation. Alleged rights were not recorded in the revenue record for reasons best known to Predecessor-in- interest of the petitioners. No claim qua possession or alleged rights was raised till filing of constitutional petition - W.P. No. 3497 of 2010. There was no plausible justification for delayed fling of application under section 18 of Ordinance-1949 – apparently filed in the year 1954 - and deliberate withholding of information from the Custodian regarding the possession, control or management of evacuee property, as essentially required in terms of section 8 of Ordinance-1949. The Custodian while making declaration has not dilated upon the issue of limitation, which is crucial matter as elucidated in judgment reported as “(1) Ata Ullah Malik v. The Custodian Evacuee Property, West Pakistan and Karachi, (2) Sardar Battan Singh Haranam Singh, (3) S. Ishwar Singh Harnam Singh, (4) S. Amar Singh Ishwar Singh, Rashid Merwari Irani and (6) Khuda Dad Ardsher Irani” (PLD 1964 SC 236). These facts are critical in determining credibility and seriousness of alleged claim of the petitioners, which extended no support to the rights claimed.

18. In these circumstances, it is clear that declaration by the Custodian, declaring the property as non-evacuee property, in terms of orders dated 30.10.1956 and 23.01.1957 - by Deputy Custodian and Additional Custodian Evacuee Property, respectively – was illegal, void and of no legal effect. No endorsement of effectiveness or confirmation qua rights claimed transaction of transfer could be conferred, allowed or acknowledged in the absence of requisite confirmation under section 16 of Ordinance-1949. The claim of the petitioners – regarding transaction of sale dated 24.06.1947 - was devoid of any lawful basis and said transaction neither creates nor confer any right qua the property, unless statutory conditions were fulfilled. In the absence of grant of confirmation, no rights can be claimed qua the property, which remained evacuee for all intent and purposes and vests in the Government after the repeal of Evacuee and Settlement Laws. The order dated 30.10.1956 and 23.01.1957 are declared as void, of no legal effect and devoid of lawful authority.

1. The judgments referred to by learned counsel for the petitioners – Qua alleged rights in the property – may constitute authorities in view of the facts and circumstances involved therein, which judgments are distinguishable and do not apply to the facts and circumstances of this case. No right can be claimed in the property merely on the basis of declaration under section 18 of Ordinance-1949, when the status of the property was evacuee for all intent and purposes. The cases of Haji Ashfaq Ahmad Khan (supra) and Commissioner of Income-tax N.C.A. Circle (supra) aptly elucidate significance of confirmation under section 16 of Ordinance - 1949.

20. Now I proceed to determine alleged rights claimed by the Respondents No. 7 to 12, who questioned entitlement of the petitioners and also claimed alleged rights in the property on the basis of decree of Civil Court and bonafide purchase of allotted property. The crux of the submissions of Respondents No. 7 to 12 are that their predecessor-in-interest [Aslam Khan] had validly acquired by the property for consideration, who allegedly had no knowledge of order of cancellation of allotment. It is alleged that ownership rights of Aslam Khan were affirmed through decree of the Civil Court dated 23.02.1997. The elemental question is that whether a bona- fide purchaser can claim any alleged rights in the property when original allotment was cancelled being bogus, and such cancellation was unsuccessfully challenged by said allottee. The judgments referred by the learned counsel for the petitioners regarding absence of jurisdiction are distinguishable and not apt for the circumstances of this case. There is no cavil that any act in law, which is nullity, coram-non-judice or devoid of jurisdictional competence can be impugned before the Civil Court, including an action of the Settlement Officer passed after the repeal of Evacuee and Settlement Laws. Reference is made to the judgments reported as “Pakistan Transport Company Ltd. v. Walayat Khan through Legal Heirs” (2002 SCMR 1470), “Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi” (PLD 1965 Supreme Court 698) and “Sami Ullah Khan and others v. Sheikh Taj Muhammad through Legal Heirs and others” (PLD 2015 Peshawar 175). The exception created qua the jurisdiction of the Civil Court in above-noted judgments, is applicable when the order, to be impugned before Civil Court, is coram-non-judice, without jurisdiction, nullity in law and seeped in malafides. Whether such an exceptional situation/ circumstances existed when the deceased Aslam Khan filed a suit before Civil Court in 1995 - to challenge order of cancellation of allotment. In this case there is no question of cancellation of allotment after the repeal of Evacuee and Settlement Laws, which fact alone brings the order of cancellation within the jurisdictional domain of the hierarchy created upon the repeal of Laws. The order of cancellation of allotment was not a nullity in law coram-non-judice or devoid of jurisdictional authority. The entitlement/locus standi of the Respondents No. 7 to 12 to claim alleged rights in the property was lacking, hence, Civil Court has no jurisdiction to pass decree dated 23.02.1997. Reference is made to the ratio in decision of case reported as “Faizuddin Ahmad v. Muhammad Yousaf and another” (1988 SCMR 1289) and “Muhammad Sarwar and 5 others v. Muhammad Ali and 18 others” (2002 SCMR 829). It is not disputed that deceased Aslam Khan (predecessor-in-interest Respondents No. 7 to 12) could not claim any right, better or superior as vested in the original allottee, whose allotment was declared bogus and accordingly cancelled. The decree by the Civil Court suffers from jurisdictional defect and inherently devoid of any legal basis, which had illegally and erroneously conferred ownership rights on deceased Aslam Khan, without acknowledging limitations / encumbrances placed by law on the claimants alleging purchase in good faith from the persons, having no legal right to affect transfers thereof. Once allotment was cancelled, being bogus and unsuccessfully challenged by the original allottee, the Civil Court had no jurisdiction in law to adjudge claim of subsequent vendee, claiming rights of a bona-fide purchaser. No rights qua bona- fide purchaser can be claimed under section 41 of the Transfer of Property Act, 1882. Reference is made to an illustrative judgment reported as “Muhammad Yamin and others v. Settlement Commissioner and others” (1976 SCMR 489) and “Talib Hussain and others v. Member, Board of Revenue and others” (2003 SCMR 549), relevant portion whereof is reproduced hereunder as:

“6. Now the next question is as to whether petitioners who are the vendees can enjoy the protection as it has been envisaged under section 41 of the Transfer of Property Act suffice it to observe that in respect of evacuee property no such protection is available to a vendee as it has been held in the judgments (1) Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53), (2) Manzoor Hussain v. Fazal Hussain and others (1984 SCMR 1027), (3) Gul Muhammad and others v. The Additional Settlement Commissioner and others (1985 SCMR 491), (4) Ejaz Ahmad Khan v. Chahat and others (1987 SCMR 192), (5) Mst. Resham Bibi v. Mst. Elahi Sain (PLD 1991 SC 1034) and (6) Sufi Zaheer Ahmad (deceased) through Legal Heir v. Chief Settlement and Rehabilitation Commissioner and others (1993 MLD 195). It is important to emphasise that petitioner’s entitlement is based upon the entitlement of Syed Nizamuddin, therefore, petitioner either to have survive or sink depending upon determination of legal status of the property which was transferred to him and as now he has failed to keep his entitlement alive, therefore, petitioner’s claim is bound to be rejected”.

All post-cancellation transfers and mutations – irrespective of having its source in the judgment of the Court or based on purchase of rights without knowledge – are void and of no legal effect. No rights can be claimed by the Respondents No. 7 to 12, in the property, either by virtue of decree dated 23.02.1997 or being a good-faith purchase for consideration, without notice. Nothing has been alleged with respect to lack of authority, power and jurisdiction of Additional Commissioner Land Revenue – having powers of Chief Settlement Commissioner Sargodha to pass the order of cancellation of allotment dated 17.05.1976. The judgments with respect to lack of jurisdiction under section 41 of Act-1957 were not relevant to the facts of the case, as the question before the Civil Court was not with regard to determination of status of the property or adjudication of any declaration by the Custodian. It is significant that the property continued to maintain its status as evacuee property - notwithstanding declaration by the Custodian, which declaration is void - and vests in Government upon cancellation of order of allotment and repeal of Evacuee and Settlement Laws, which evacuee status of the property and repeal of Laws divest Civil Court of any jurisdiction to entertain and adjudicate upon the lis.

21. The question that whether this Court can exercise jurisdiction to declare rights of the Respondents No. 7 to 12, void and of no legal effect. This Court in the exercise of judicial review jurisdiction cannot ignore any illegal and unlawful exercise of jurisdiction by the Court, merely for the reason that such decree or order is not directly challenged though subject matter of judicial review in collateral proceedings. And failure to exercise judicial review jurisdiction, when it was essentially required to rectify apparent jurisdictional defect in the proceedings, would tantamount to aiding injustice, unfairness and to perpetuate retention of illegal gains. Guidance is solicited from the ratio of decision in cases reported as cancellation of allotment dated 17.5.1976. The judgments “Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others” (PLD 1973 Supreme Court 236) and “The Chief Settlement Commissioner, Lahore v. Taja Muhammad Fazil Khan and others” (PLD 1975 Supreme Court 331). Relevant portion from judgment in ‘Chief Settlement Commissioner, Lahore’ (supra) is reproduced hereunder:

“The question whether the High Court, acting in the exercise of its writ jurisdiction should have granted relief to the respondent merely on technical grounds, assuming that the order made by the Officer on Special Duty was factually well-founded, has to be answered in the negative in view of the opinion repeatedly expressed by this Court in several cases, namely, Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner (1), Tufail Muhammad v. Muhammad Ziaullah Khan (2), Merajuddin v. Director, Health Services (3) and Wali Muhammad and others v. Sheikh Muhammad and others (4). In all these cases it has been observed that the discretionary relief ought not to be granted by the High Court to help

retention of ill-gotten gains by a party even if because of any technical reason an order made by a tribunal is not found justifiable, as the writ jurisdiction is not to be invoked in aid of injustice.”

22. The claim of Respondents No. 7 to 12 have had to be necessarily adjudicated upon – who are usurpers and illegal occupants and benefiting themselves at the expense of Government’s land – and decided while determining the lis, relating to the alleged claim of the petitioners. In view of the above, Respondents No. 7 to 12 are not eligible to claim any alleged rights in the property by virtue of judgment and decree dated 23.02.1997. The claim of petitioners with respect to property is already declared as void and of no legal effect.

23. I hold that property in question vests in the Government and same is required to be dealt with in accordance with the mandate of section 3 of the Evacuee property and Displaced Persons Laws (Repeal) Act, 1975.

1. In view of the aforesaid, this petition is without merits, incompetent and same is, therefore, dismissed. The Deputy Registrar (Judicial) is directed to send copy of the judgment to Senior Member Board of Revenue, Punjab and the Notified Officer, Sargodha Division, Sargodha, who shall take appropriate measures for safeguarding rights of the Government in the property under reference.

(M.M.R.) Petition Dismissed

PLJ 2020 Lahore 156

Present:Shujaat Ali Khan, J.

MUHAMMAD YAR--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, DEPALPUR etc.--Respondents

W.P. No. 71921 of 2019, decided on 27.11.2019.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Application for cancellation of mutation--Accepted--Objection petition--Dismissed--Appeal--Dismissed--Shame transaction--Concurrent findings--Challenge to--I have noted that decree in suit filed by; Respondents No. 4 & 5 was passed whereas mutation in favour of petitioner was got attested by judgment-debtor/Respondent No. 6 (real son of petitioner) in his favour thus, same falls within definition of sham transaction which has rightly been cancelled by Executing Court--Concurrent findings of facts recorded by Courts below cannot be upset in Constitutional jurisdiction until and unless they are proved to be perverse or result of arbitrariness which is not position in case in hand--Petition was dismissed. [Pp. 157 & 158] A, & B

2011 SCMR 1073 ref.

Mr. Muhammad Asif Saeed, Advocate for Petitioner.

Date of hearing: 27.11.2019.

Order

Through this petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner (father of the judgment-debtor/Respondent No. 6 and paternal grandfather of Respondents No. 5) has put a challenge to order, dated 20.09.2019, passed by the learned Judge Family Court, Depalpur (learned Executing Court) whereby the application filed by Respondents No. 4 & 5 (judgment-debtors) for cancellation of Mutation No. 931, dated 10.05.2017, attested in favour of the petitioner was accepted and the Objection Petition filed by him was dismissed. In addition thereto, the petitioner has also assailed judgment, dated 09.11.2019, passed by the learned Additional District Judge, Depalpur (learned Appellate Court) whereby the appeal filed by him against order, dated 20.09.2019, was dismissed.

1. Learned counsel for the petitioner contends that during pendency of proceedings before learned Executing Court the petitioner offered for deposit of reasonable amount out of outstanding amount of maintenance with the further assurance to pay future maintenance for the minors but without considering said request the leaned Executing Court dismissed his Objection Petition; that even today the petitioner is ready to deposit Rs. 1,00,000/- out of outstanding amount of maintenance in addition to paying future maintenance for the minors and that in ease the property of the petitioner is attached he would be deprived of his sole source of earning bread and butter.

3. After hearing learned counsel for the petitioner and scanning the documents, appended with this petition, I nave noted that decree in the suit filed by Respondents No. 4 & 5 was passed on 05.01.2017 whereas mutation in favour of the petitioner was got attested by the judgment-debtor/Respondent No. 6 (real son of the petitioner) in his favour on 10.05.2017, thus, the same falls within the definition of sham transaction which has rightly been cancelled by the learned Executing Court.

1. As far as readiness of the petitioner for partial payment of outstanding maintenance for the minors in addition to paying the future maintenance, is concerned, suffice it to say that he is at liberty to satisfy the decree through his son/judgment-debtor and there is nothing impeding his way but the said fact cannot be used to set aside the impugned orders.

5. As per law laid down by the Apex Court of the country in the case of Farhat Jabeen v. Muhammad Safdar and others (2011 SCMR 1073) concurrent findings of facts recorded by the Courts below cannot be upset in Constitutional jurisdiction until and unless they are proved to be perverse or result of arbitrariness which is not the position in the case in hand.

1. For what has been noted above, I see no force in this petition which is dismissed in limine.

(Y.A.) Petition Dismissed

PLJ 2020 Lahore 158

Present:Atir Mahmood, J.

M/s. IHSAN SPORTS through Managing Partner--Petitioner

versus

M/s. PAKISTAN CARGO SERVICES (Pvt.) Ltd. through Chief Executive--Respondent

C.R. No. 233563 of 2018, decided on 15.10.2019.

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

----S. 115--Agreement for dispatch of goods--Letter of instructions--Booking of consignment of goods--Claim for reimbursement of amount--Question of--Whether respondent had cause of action to file suit and was entitled to decree as prayed for--Determination--Liability of shipper--Challenge to--Shipper is liable for all charges and expenses relating from or in connection with failure to take delivery of shipment by Consignee--But there is no evidence on record which could establish that consignee did not receive consignment on its own; and consignment was confiscated on any fault of consignee--It has never been case of respondent that consignment was delivered but Consignee refused to pay charges/ freight--Consignment was not sent to Consignee at proper address nor there is an iota of evidence that Consignee did not receive consignment willingly and refused to pay charges--Respondent miserably failed to establish through any evidence that he had any cause of action against petitioner--Further, findings of learned Courts below on issue No. 7 which is core issue, are result of misreading and non-reading of evidence as well as a result of ignorance of law--There is no cavil to proposition that normally High Court does not interfere in concurrent findings of fact recorded by two Courts below but when there is gross misreading and non-reading of evidence and patent violation of law, floating on surface of such concurrent findings, this Court cannot shut its eyes and is always under obligation to rectify error by interference in such like illegal findings--Both Courts below badly failed to analyze facts and law on subject and committed grave irregularity and illegality while passing impugned judgments and decrees, which cannot be sustained in eye of law--Both Courts below have erroneously decreed suit filed by plaintiff while being contrary to law and to usage having force of law cannot be sustained and same are liable to be interfered with by High Court--Revision petition was allowed. [Pp. 163, 164 & 165] A, B, C, D & E

2016 SCMR 24 and 2004 SCMR 1001 ref.

Ms. Saddia Malik, Advocate for Petitioner.

Proceeded exparte for Respondent.

Date of hearing: 15.10.2019.

Judgment

Brief facts of the case are that respondent filed a suit for recovery of Rs. 28,78,860/- on 04.09.2004 against the petitioner alleging therein that in order to onward shipment of a consignment, handed over by the petitioner related to Airway Bill No. 172-23854261 containing 634 cartons, weighing 12680 kg worth US$53200/-, the respondent incurred freight and other expenses to the tune of Rs. 28,78,860/- through a cheque drawn on PICIC Commercial Bank Ltd, Uggoke Road, Shahabpura Branch, Sialkot; that the respondent was approached to reimburse the said amount, however, he refused to do so. Suit was contested by the petitioner by way of filing written statement. Out of the divergent, pleadings of the following issues were framed.

ISSUES

1. Whether the plaintiff has no cause of action to file the present suit? OPD

2. Whether the alleged resolution is not according to company Ordinance which is bogus, hence plaintiff Muhammad Nauman has no power to file the, present suit? OPD

3. Whether the suit of the plaintiff is liable to be dismissed due to non-joinder of necessary parties? OPD

4. Whether the suit of the plaintiff is liable to be rejected under Order VII Rule 11 of the CPC? OPD

5. Whether the suit of the plaintiff is time barred? OPD

6. Whether the plaintiff has filed the present suit just to harass the defendant, hence defendant is entitled special costs under Section 35-A of CPC? OPD

7. Whether the plaintiff is entitled to the decree for recovery of Rs. 28,78,860/-? OPP

7-A.Whether the defendants are entitled for recovery of one Crore as set off as their claim in Para No. 5 of the written statement? OPD

1. Relief.

Thereafter, evidence led by the parties was recorded. Learned trial Court after hearing both the parties, decreed the suit of the respondent vide judgment and decree dated 15.06.2012. Feeling dissatisfied, petitioner preferred an appeal before learned lower appellate Court which met with the same fate vide judgment and decree dated 21.04.2018. Hence, this revision petition has been filed.

1. Learned counsel for the petitioners reiterated the grounds raised in this revision petition while contending that impugned judgments and decrees passed by learned Courts below are the result of misreading and non-reading of evidence; that the suit was not filed by duly authorized person whereas, Ex.P-1, the authorization, has no legal value as is not filed in consonance with law; that the impugned judgments are not based with application of judicial mind; that the impugned judgments and decrees are against the law and facts of the case, therefore, same are liable to be set aside. He has placed his reliance upon cases reported as “Cress LPG (Pvt) Ltd. through authorized representative v. M.T. Maria III through Master/Chief Engineer/Chief Officer and others” (2018 CLD 972), “Mubarik Ali through LRs. v. Amroo Khan thorugh L.Rs. ” (2007 SCMR 1714), “Abdul Sattar v. Mst. Anar Bibi and others” (PLD 2007 Supreme Court 609), “Province of Punjab through Collector, Faisalabad and another v. Rana Hakim Ali and another” (2003 MLD 67), “State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal” (2011 SCMR 1013), “Messrs India, Coffee and Ten Distributing Co., Ltd v. The State of Madras, represented by the Collector of Madras” (A.I.R 1954 Madras 1030) and “Commissioner Income Tax and Wealth Tax, Gujranwala Zone, Gufranwala and others v. Messrs Asif Industries, Alipur Chatta, Wazirabad and others” (2005 PTD 1145).

2. Process for service of respondents was issued but none has entered appearance on their behalf, even after proclamation in the newspaper, therefore, they were proceeded against exparte vide order dated 14.12.2018.

3. After hearing the arguments and perusal of the record, the point for consideration before this Court is as to whether the respondent had the cause of action to file the suit and was entitled to the decree as prayed for.

4. Before dilating upon the merits of the case, certain terms, which will come under discussion, as those regulate the transactions between the parties and have been defined under the Air Cargo Tariff Manual (applicable in the terms in question), are reproduced as under:

Airway Bill (AWE)

“Means the document made out by or on behalf of the shipper which evidences the contract between the shipper and carrier(s) for carriage of goods over routes of the carrier(s).”

Master Air Waybill

“Means an Air Waybill covering a consolidated consignment showing the consolidator as shipper.”

House Air Waybill (HAWB)

“Means the document which covers each individual shipment of a consolidation. It is issued by the consolidator and contains instructions to the break bulk agent.”

Consignee

“The person whose name appears on the AWB as the party to whom the goods are to be delivered by the carrier.”

Charges Collect (Freight Collect)

“The charges entered on the AWB for Collection from the Consignee.”

Consignment, Consolidated

“A consignment of multi-packages which has been originated by more than one person each of whom has made an agreement for carriage by air with another person other than a scheduled air carrier. Conditions pertaining thereto, applied to that agreement, may or may not be the same as the conditions pertaining thereto, applied by the scheduled, air carrier for the same carriage.”

Consolidation

“See Consignment, Consolidated.”

Further term “Free on Board” (FOB)” has been defined in the International Commercial Terms known as INCOTERMS published by International Chamber of Commerce (ICC) as under:

“The Seller delivers the goods on board the ship and clears the goods for export. From that point, the Buyer bears all costs and risks of loss or damage.”

1. Admittedly, the respondent’s company is a cargo agent with whom the petitioner entered into an agreement for dispatch of goods and a letter of instructions was written (produced in the evidence as Exh.P5). The respondent booked the consignment relating to Airway Bill No. 172-23854261 dated 08.06.2002 containing 634 cartons, weighing 12680 kg having US$ 53200/-. The freight and other expenses incurred thereon were statedly amounting to Rs. 2878860/-. According to the respondent, the above said amount was paid to air carrier for the transportation of consignment in question. The respondent claimed the reimbursement of said amount through a letter dated 26.03.2003 (Ex.P-4) and a final letter dated 24.06.2004 (Ex.P-3). The petitioner controverted the contents of the plaint by filing a written statement and specifically raised the plea that as per airway bill (AWB) and letter of instructions, all the expenditures were the liability of the Consignee under the rule of free on board (FOB). It was further stated in the written statement that the respondent was cargo agent of the PEPSI-COLA MEXICANA, S.A. D.E. A.V, VASCO, De Quiroga, No. 300 PISO 4 Col. Lomas Santa FE, 01210 Mexico D.F. R.F.C PMC-8702010-EC8 (hereinafter referred to as “the Consignee”) and therefore, the payment of freight was a matter between the Consignee and the cargo agent and the petitioner being the shipper had nothing to do with any payment made by the cargo agent. It is further asserted that the respondent/cargo agent on its own, without any instructions from the petitioner, changed the name of Consignee and the goods were not delivered to the Consignee of the petitioner which caused damages to the petitioner company.

2. After framing of issues the evidence of the parties was recorded. The PW-1 Mohammad Nouman Yahya, reiterated the contents of the plaint and produced Ex.P-1 Board Resolution, Ex.P-2 Master Airway Bill dated 12.06.2002, Ex.P-3 final notice dated 24.06.2004 Ex.P-4 letter dated 06.03.2003 and also produced documents as Mark ‘A’ to Mark-D. In cross-examination he stated that Ex.P-2 is the original airway bill, whereas, Ex.P-6 is house airway bill. He stated that in Ex.P-2 shipper is Pakistan Cargo Service. He explained the reason that when freight is to be charged from the Consignee, then in master (airway bill) the name of the receiver of money is mentioned, whereas, in house (airway bill) the name of sender is written. He admitted that the shipment was made under the principle of FOB. He denied the suggestion that under FOB the payment is to be made by the person who purchases the goods (the Consignee). He volunteered that under FOB the shipment is then forwarded when shipper undertakes to pay freight if the goods are not collected by the Consignee. The stance of the respondent becomes crystal clear that the cargo agent can only claim the freight from the shipper when the consignment goods are not received by the Consignee.

8. As per statement of PW-1, Ex.P-2 is master air freight bill showing the name of Pakistan Cargo Services (Pvt) Ltd. (respondent) as the shipper but perusal of Ex.P-2 clearly reflects that it is airway bill and not master airway bill and the petitioner company is not the shipper. In this document, the name of Consignee is RR. Shipping and Chartering S.A. DE.C.V. MEXICO. The Ex.P-4 which is letter dated 06.03.2003 suggests that the shipment was confiscated by the local authorities and further that under Rule 2.8 IATA Rules and Regulations, the shipper is liable for all charges and expenses relating from or in the connection with the failure to take the delivery of the shipment by Consignee. But there is no evidence on record which could establish that the consignee did not receive the consignment on its own and the consignment was confiscated on any fault of the consignee.

1. When this Ex.P-4 is read in juxta position with cross-examination conducted upon PW-4 it becomes crystal clear that the shipment was not delivered to the Consignee i.e. PEPSI COLA, Mexicana. It is noticed that PW-1 made inconsistent statement in order to prove his case but instead of proving he damaged the entire case. He stated that the name of shipper and Consignee had not been changed, whereas, name of shipper on Ex.P-2 is Pakistan Cargo Services Ltd. and in Ex.P-5 name of shipper is Ihsan Sports and Consignee is PEPSI COLA, Mexicana. Furthermore, Ex.P-6 airway bill is dated 08.06.2002, wherein, MAWB number has been mentioned as 172-2385-4261 and it is astonishing that when this Ex.P-2 is dated 12.06.2002 then how that number could be mentioned in Ex.P-6 which is dated 08.06.2002 executed earlier than Ex.P-2. In rebuttal DW-1 Muhammad Shahbaz stated on oath that Pakistan Cargo did not take any permission from the petitioner for sending the shipment to any other than the Consignee/PEPSI COLA Mexicana. This statement was not cross-examined by the respondent and no suggestion was put that the consignment was delivered to the Consignee who did not pay the freight or that the consignment was confiscated by the authorities due to any act of the Consignee. It has never been the case of the respondent that consignment was delivered but the Consignee refused to pay the charges/freight. In this regard, the clause-III of shipper letter of instructions for dispatch is relevant which is reproduced as under:

“(iii) Undertakes and binds themselves legally to pay Air Freight Amount mentioned in Airway Bill under which consignment is booked WHEN the AWB of the consignment is executed by Pakistan Cargo Services (Pvt.) Ltd. and pay all charges at once on intimation, incurred on the transportation of consignment if it is on chares collect basis and the consignee refuses to make payment at destination. We shall make this payment irrespective of any other dispute with PAKISTAN CARGO SERVICES (PVT) LTD or the carrier concerned.”

(Emphasis provided)

10. In view of the above discussion, I am of the considered opinion that the consignment was not sent to the Consignee at the proper address nor there is an iota of evidence that the Consignee did not receive the consignment willingly and refused to pay the charges. The respondent miserably failed to establish through any evidence that he had any cause of action against the petitioner. Further, the findings of the learned Courts below on Issue No. 7 which is core issue, are result of misreading and non-reading of evidence as well as a result of ignorance of law. Both the learned Courts below failed to appreciate the term ‘FOB’ and distinction between the terms ‘AWB’, ‘HAWB’ and ‘MAWB’, which resulted into miscarriage of justice. There is no cavil to the proposition that normally this Court does not interfere in the concurrent findings of fact recorded by two Courts below but when there is gross misreading and non-reading of evidence and patent violation of law, floating on the surface of such concurrent findings, this Court cannot shut its eyes and is always under obligation to rectify the error by interference in such like illegal findings. Reliance can be placed upon the judgments reported as “Nazim ud Din and others v. Shaikh Zia ul Qamar and others” (2016 SCMR 24) and “Ghulam Muhammad and 3 others v. Ghulam Ali” (2004 SCMR 1001).

11. Keeping in view of what has been discussed above, I feel no hesitation to observe that both the Courts below badly failed to analyze the facts and law on the subject and committed grave irregularity and illegality while passing the impugned judgments and decrees, which cannot be sustained in the eye of law. Both the Courts below have erroneously decreed the suit filed by the plaintiff while being contrary to law and to usage having the force of law cannot be sustained and same are liable to be interfered with by this Court. Consequently, this revision petition is allowed, impugned judgments and decrees passed by learned Courts below are hereby set aside and suit filed by the plaintiff is hereby dismissed. No order as to cost.

(Y.A.) Petition Allowed

PLJ 2020 Lahore 165

Present: Shahid Waheed, J.

SAJJAD HAIDER--Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY, through DIRECTOR GENERAL, LAHORE and 4 others--Respondents

W.P. No. 230783 of 2018, decided on 7.11.2019.

Constitution of Pakistan, 1973--

----Art. 199--Acquiring of land for housing scheme--Application for demarcation of land to Assistant Commissioner--Claim of ownership--Sale-deed--Constitutional jurisdiction--Khasra number or whereabouts indicating exact location of plots allegedly owned by him has not been mentioned anywhere; that petitioner himself is not clear as to exact location of his ownership and for that reason he had moved an application before concerned authority for demarcation of his land--Grievance voiced in this petition requires detail investigation through recording of evidence, which exercise cannot be undertaken by High Court in exercise of constitutional jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan, 1973--Petition was dismissed. [Pp. 166] A & B

Sh. Naveed Shehryar, Advocate for Petitioner.

SahibzadaMuzaffar Ali, Advocate for LDA/Respondents No. 1 & 2.

Mr. Asif Ismail Bhatti, Assistant Advocate General for Respondents No. 3 to 5.

Date of hearing: 7.11.2019.

Order

Prayer in this constitutional petition is that action of the Lahore Development Authority taking possession of the petitioner’s property be declared illegal.

1. It is contended that the petitioner purchased two plots measuring one kanal each through two registered sale deeds dated 08.06.2015 and 06.08.2015 which were duly incorporated in the revenue record vide Mutations Nos. 12442 and 12471; that the Lahore Development Authority without any power or jurisdiction has taken possession of the petitioner’s above referred plots along with other area and started claiming ownership over them; and that, the petitioner even submitted an application to the Assistant Commissioner for demarcation of his plot but of no avail.

3. On the other hand, learned Legal Advisor of the Lahore Development Authority submitted that perusal of the sale deeds annexed with the instant petition transpires that the petitioner is claiming ownership of two kanals land out of a joint Khatta measuring 51 kanals, 15 marlas falling in Khewat No. 63, Khatooni Nos. 220 to 233, Mauza Kot Kamboh; that Khasra number or whereabouts indicating the exact location of the plots allegedly owned by him has not been mentioned anywhere; that the petitioner himself is not clear as to exact location of his ownership and for that reason he had moved an application before the concerned authority for demarcation of his land; and that the Lahore Development had acquired Khasra No. 587, 538, 543, 445, 599, 588, 598, 545, 593, 592, 594, 595, 535, 540, 548 min, 541 and 547 of Mauza Kot Kambohvide Notification No. LAC/2458 dated 02.04.1981 for Sabza Zar Housing Scheme.

4. After hearing learned counsel for the parties I am of the view that grievance voiced in this petition requires detail investigation through recording of evidence, which exercise cannot be undertaken by this Court in exercise of constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

1. In view of above, this petition being not maintainable is dismissed.

(Y.A.) Petition Dismissed

PLJ 2020 Lahore 167

Present:Rasaal Hasan Syed, J.

MUHAMMAD RAFI--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

W.P. No. 71966 of 2019, decided on 25.11.2019.

Constitution of Pakistan, 1973--

----Art. 199--Civil Procedure Code, (V of 1908), O.I R. 10--Constitutional petition--Suit for partition--Application for impleadment as party--Dismissed--Mutation of property in name of two legal heirs--Gift agreement--Suit for partition--Dismissed--Revision petition--Declined--Question of--Whether petitioner is a necessary or proper party--It is discernible from file that suit for partition was pending since July 2015 and for more than 2½ years neither any application for impleadment was filed nor Asim Zaman Khan ever withdrew from his earlier stance and despite that a collusive reply to application was filed by him which speaks volumes about purpose of suit and intention behind moving of application under Order I, Rule 10, C.P.C.--At present for purpose of deciding , question as to whether petitioner is a necessary or ; property party, petitioner referred to certain cases wherein provision of Order I, Rule 10, C.P.C. was interpreted--Referred cases had their own, distinguishable facts--Obviously, a necessary party is one without whom no decree can be passed or who is bound to be affected by decree--Petitioner in peculiar circumstances of this case was neither necessary nor proper party--There are serious doubts as to genuineness of his claim--Fact that a suit has been filed by petitioner which is still for declaration and for specific performance means that petitioner is praying for a decree which as yet has not been passed in his favour--Co-owners of property who were necessary and proper parties have already been impleaded--In so far as petitioner is concerned, he has as yet no title in property and is struggling for a declaration in his suit--Petitioner’s impleadment at this stage, will result in extraneous issues which at present are not subject matter of suit for partition--Petitioner needs to follow up proceedings in his own suit and if he succeeds, consequential events will automatically result and he will not be adversely affected in proceedings of partition between existing two owners of property--It may be observed that for determination of issues arising in suit for partition presence of petitioner is neither necessary nor proper--In this view of matter Civil Judge rightly dismissed application of petitioner under Order 1, Rule 10, C.P.C. and ADJ rightly declined to interfere in revisional jurisdiction--Petition was dismissed. [Pp. 170, 171 & 172] A, B, C, D & E

Mr. Abdul Rauf, Advocate for Petitioner.

Date of hearing: 25.11.2019.

Order

This writ petition calls in question order dated 23.10.2019 and 20.11.2019 of the learned Courts below whereby the petitioner’s application under Order I, Rule 10, C.P.C. for impleadment as a party in a suit for partition was dismissed and the revision petition thereagainst was also declined.

1. Respondent No. 3 (Asim Zaman Khan) filed a suit for partition of commercial and residential plot against Respondent No. 4 (Javed Usman Khan) claiming that his real sister Mst. Shazia Summaya was owner of the property, on her demise, she was succeeded by Respondent No. 3, as her real brother and Respondent No. 4 as her husband and that both of them inherited the property in equal share and also that on the demise of late Mst. Shazia Summaya, her property was mutated in the name of two legal heirs i.e. Respondent Nos. 3 and 4. With these assertions, a decree for partition was claimed. The suit was instituted by Respondent No. 3 on 03.7.2015 wherein Respondent No. 4 filed his written statement on 28.9.2016. In his written statement, the Respondent No. 4 admitted that late Mst. Shazia Summaya was his wife and that Respondent No. 3 (Asim Zaman Khan) was real brother of deceased and that the property was owned by the deceased and also that the property devolved upon Respondents Nos. 3 and 4 in equal share through inheritance and that the property was to be divided in equal shares between them.

2. During the pendency of the suit, petitioner (Muhammad Rafi) filed an application under Order I, Rule 10, C.P.C. for his impleadment as a party claiming that he used to live in the house of Mst. Shazia Summaya, served her throughout life and that on account of his services, the deceased allegedly executed an agreement by which she gifted the property in his favour and that he came to know of the suit when the commission appointed in the suit for partition visited the site. It was claimed that the petitioner filed a suit for declaration and specific performance and that he was a necessary and proper party in the suit for partition. The application under Order I, Rule 10, C.P.C. was filed on 24.1.2018. Strange enough Respondent No. 3 (who is plaintiff in the suit for partition) did not oppose the application while it was resisted by Respondent No. 4 who categorically stated that the deceased remained owner of the property till her death; the property devolved upon her legal heirs i.e. brother and the husband in equal share and that the property was mutated in the revenue record in favour of the legal heirs and further that the alleged agreement relied upon by the petitioner/Muhammad Rafi was a forged document and that the petitioner was never the servant of deceased. It was added that the deceased lived with Respondent No. 4 in Pak Pattan till her death and she was a PardhaNasheen lady and that the application was filed with mala fide intention and in collusion with Respondent No. 3 (plaintiff in the suit for partition).

3. Learned Civil Judge, Depalpur, District Okara after considering the stance of both sides, dismissed the application under Order I, Rule 10, C.P.C., vide order dated 23.10.2019. Revision petition filed by the petitioner also ended in dismissal vide order dated 20.11.2019 of the learned Addl. District Judge, Depalpur. In the instant petition these two orders have been challenged.

4. Learned counsel for the petitioner argued that the petitioner was a necessary and proper party and that Section 8 of the Punjab Partition of Immovable Property Act, 2012 was misconstrued and that the petitioner claimed title in the property and was interested to protect his interest in the property and his impleadment in the suit was, therefore, necessary and essential.

5. Submissions made by learned counsel have been given due consideration. Record annexed with this writ petition has also been carefully examined. Perusal of the copy of the plaint in the suit for partition, wherein the distribution of the property belonging to late Mst.Shazia Summaya has been claimed, was filed by real brother Asim Zaman Khan, who is Respondent No. 3 in this writ petition. In his plaint he alleged that the property belonged to the deceased; and on her demise, it devolved upon Respondents Nos. 3 and 4 in equal share as brother and husband of the deceased and that the suit property was to be divided between them. There is no reference to any claim of Muhammad Rafi petitioner. The suit was instituted on 03.7.2015 by Respondent No. 3 himself. Respondent No. 4, husband of the deceased filed his written statement on 28.9.2016 wherein he reiterated that the property belonged to the deceased Mst. Shazia Summaya, who was his wife and that the same devolved upon the plaintiff (brother of deceased) and Respondent No. 4 (husband of the deceased). It is also discernible from the file that on the demise of Mst. Shazia Summaya, the mutation of inheritance, was attested in favour of her legal heirs and that the said legal heirs i.e. plaintiff and defendant in the suit for partition, were reflected as successors/owners of the property in the Register Haqdaran. It is also discernible that the suit for declaration, purportedly filed by the petitioner Muhammad Rafi, was instituted on: 06.1.2017 i.e. two years after the filing of the suit for partition. It is surprising that Respondent No. 3 (Asim Zaman Khan) brother of deceased Mst.Shazia Summaya, who had himself filed a suit for partition had stated on Oath therein that the property devolved upon him as a brother and Javaid Usman Khan as husband of the deceased in equal share, submitted in his written statement in the suit of Muhammad Rafi to the effect that some gift was made but the same was cancelled with mutual consent in the presence of witnesses and that the petitioner was paid some compensation; and also that the petitioner had no concern with the property. The written statement was filed on 21.2.2018 wherein the stance , taken was contradictory to what Respondent No. 3 had earlier claimed in plaint for partition and this obviously supports the stance of Respondent No. 4 that the filing of suit and the filing of application under Order I, Rule 10, C.P.C. by petitioner was sponsored by Respondent No. 3 to create unnecessary hurdles in the finalization of suit for partition knowing well that no such document was ever executed. It is discernible from the file that the suit for partition was pending since July 2015 and for more than 2½ years neither any application for impleadment was filed nor Asim Zaman Khan ever withdrew from his earlier stance and despite that a collusive reply to the application was filed by him which speaks volumes about the purpose of suit and the intention behind the moving of application under Order I, Rule 10, C.P.C. It is also manifest that Respondent No. 4 specifically stated in his defence that his wife lived with him till her death. She was living in Pak Pattan and that the stamp paper of the alleged agreement dated 26.2.2009 had been fabricated, which was statedly purchased from Naseer Bhutta resident of Chak No. 40-D, Tehsil Depalpur; a place at a distance of 55 KM from the residence of Mst.Shazia Summaya. It was explained that she was a Purdah Nasheen lady and was living with Respondent No. 4 till her death in Pak Pattan, the document was a complete fabrication and forged and that the petitioner had committed an offence punishable under Sections 420, 468 and 471, P.P.C. In these circumstances, the stance of Respondent No. 4 was that the petitioner was sponsored by Respondent No. 3 and that he was neither necessary nor proper party.

7. Perusal of the copy of plaint in suit for declaration and specific performance reveals that the petitioner is claiming a declaration to the effect that he be declared to be owner and, in the alternative, he claims specific performance. In either case, declaration has not been granted in his favour. The alleged agreement dated 26.2.2009 relied upon by him, was not attested by any close relative of the deceased. Curiously enough neither the brother nor the husband is shown to be witnesses. The presence of any male member is not claimed. All these factors of course raise number of questions as to the genuineness of the document which obviously will be attended by the Court ceased of the suit for declaration and till such time his suit is decreed and he is declared to be owner, he possibly cannot claim any proprietary interest in the property so as to plead his entitlement for becoming a party in partition suit.

8. At present for the purpose of deciding the question as to whether the petitioner is a necessary or property party, petitioner referred to certain cases wherein the provision of Order I, Rule 10, C.P.C. was interpreted. The referred cases had their own, distinguishable facts. Obviously, a necessary party is one without whom no decree can be passed or who is bound to be affected by the decree. Petitioner in the peculiar circumstances of this case was neither necessary nor proper party. There are serious doubts as to the genuineness of his claim. The fact that a suit has been filed by the petitioner which is still for declaration and for specific performance means that the petitioner is praying for a decree which as yet has not been passed in his favour.

9. In any case, the suit for partition was between the two legal heirs of the deceased wherein Respondent No. 3, who was the plaintiff and Respondent No. 4 who was the defendant, had taken one stance that the property was owned by the deceased and that the same had devolved upon them in equal share, being brother and husband of the deceased, respectively. The co-owners of the property who were the necessary and proper parties have already been impleaded. In so far as the petitioner is concerned, he has as yet no title in the property and is struggling for a declaration in his suit. For the decision of the questions arises between the shareholders in a joint property, in suit for partition, only the subsisting owners of the property are the necessary and proper party. The petitioner’s impleadment at this stage, will result in extraneous issues which at present are not the subject matter of suit for partition. Till such time, the petitioner succeeds in proving that the agreement was actually executed by the deceased and the gift was made, he cannot claim to be either a co-sharer or a holder of title in the property. Petitioner needs to follow up the proceedings in his own suit and if he succeeds, the consequential events will automatically result and he will not be adversely affected in the proceedings of partition between the existing two owners of the property. It may be observed that for the determination of the issues arising in the suit for partition the presence of the petitioner is neither necessary nor proper. In this view of the matter the learned Civil Judge rightly dismissed the application of the petitioner under Order I, Rule 10, C.P.C. and the learned Addl. District rightly declined to interfere in revisional jurisdiction.

1. For the reasons above, this writ petition is without substance which is accordingly dismissed.

(Y.A.) Petition Dismissed

PLJ 2020 Lahore 172

Present:Shahid Waheed, J.

MUHAMMAD RAFI--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

W.P. No. 68356 of 2019, decided on 14.11.2019.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Suit for possession through partition--Application for impleadment as defendant--Dismissed-- Revision petition--Interlocutory order--Validity of order--Maintainability--Challenge to--It is now well settled that constitutional petition against interim order is not competent and thus, appropriate course for petitioner to adopt is to appear before Revisional Court, advance arguments and thereafter to invite its decision--Prior to that stage, interference in such type of interlocutory order is not desirable--Petition was dismissed.

[P. 173] A

Mr. Abdul Rauf, Advocate for Petitioner.

Date of hearing: 14.11.2019.

Order

This constitutional petition arises from a suit instituted by Respondent No. 3 (plaintiff) seeking a decree against Respondent No. 4 (defendant) for possession through partition of the suit property under the Punjab Partition of Immovable Property Act, 2012. During trial of the said suit the petitioner moved an application under Order I Rule 10, CPC for his impleadment as defendant on the ground that he was owner of the suit property on the basis of gift deed dated 26.02.2019. On consideration of the matter, the trial Court came to the conclusion that the petitioner was not co-owner in the suit property and thus could not be impleaded as defendant in the suit. On the basis of said conclusion, the application under Order I Rule 10, CPC was dismissed by the trial Court vide order dated 23.10.2019. The petitioner thereupon filed a revision petition before the Addl. District Judge, Depalpur. The said revision petition came up for peremptory hearing before the Addl. District Judge on 31.10.2019 and the following order was passed.

| | | | --- | --- | | 31.10.2019 | This civil revision is fresh. Be registered. | | PRESENT: | AbdurRauf Advocate, learned counsel for petitioner Preliminary arguments heard. | | | The contention of the petitioner is that impugned order dated 23.10.2019 is against law and facts, and learned trial Court has not applied its judicial mind while passing the impugned order. Therefore, the impugned order is liable to be set-aside. | | | The contention raised by the petitioner may not be appreciated without issuing the pre-admission notices to the respondents. Hence, pre-admission notices be issued to the respondents for 11.11.2019. | | Announced 31.10.2019 | Muhammad Mohsin Addl. District Judge, Depalpur |

1. The petitioner through this constitutional petition has challenged the validity of order dated 31.10.2019.

3. At the outset of hearing, I asked petitioner’s counsel as to how the instant petition is maintainable against the interlocutory order of the Revisional Court. He replied that the Revisional Court while issuing pre-admission notice had not granted interim relief, which is a material irregularity and thus, the order dated 31.10.2019 is liable to be set aside. I am afraid this reply is not satisfactory. It is now well settled that constitutional petition against interim order is not competent and thus, appropriate course for the petitioner to adopt is to appear before Revisional Court, advance arguments and thereafter to invite its decision. Prior to that stage, interference in such type of interlocutory order is not desirable. This petition is misconceived and accordingly dismissed with costs of Rs. 1000/-.

(Y.A.) Petition Dismissed

PLJ 2020 Lahore 174 [Multan Bench Multan]

Present:Asim Hafeez, J.

MANZOOR HUSSAIN (deceased) through Legal Heirs, etc.--Appellants

versus

MUHAMMAD RAFIQUE, etc.--Respondents

R.S.A. No. 14 of 1996, decided on 20.12.2019.

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

----S. 100--Specific Relief Act, (I of 1877), S. 42--West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, Ss. 2(a) & 3--Suit for declaration--Decreed--Appeal--Allowed--Case was remanded--Suit was again decreed--Inheritance mutation--Customary dispensation--Alienation of property--Concurrent findings--Limited owner--Acknowledgment of shares--Question of--Whether zamindara custom Multan was different from custom of ‘Binda-Sandhila’ and what were controus features of each of alleged custom--Challenge to--Mst. Jag Sabahi admitted that property of Muhammad Baksh was in 3 Mauzas and in Mauza’s of Alamdisura and Akbarpur, Tehsil Multan, she inherited 1/8th share only--She also admitted that alienee Ghulam Ali was her son-in-law and resided with her--In short, there was no dispute that subject matter property was ancestral land, inherited by Muhammad Baksh under prevalent custom, as grandson of Nabi Baksh--It was not case of Mst. Jag Sabahi that she inherited property of her deceased son, Muhammad Baksh, under Muslim Personal Law--Acquisition of property by Muhammad Baksh – being male heir – is not disputed therefore, limitations prescribed under section 2-A of Act 1962 were not applicable--Mst.Jag Sabahi, upon promulgation of section 2-A, filed application seeking abatement of pending suit, which application was dismissed by learned trial Courtin view of command of section 3 of Act 1962 regarding termination of limited interest of Mst. Jag Sabahi--Promulgation of section 2-A of Act 1962, respondents became co-owners of property and entitled to claim share in property, which claim cannot be denied on objection of limitation--Courts below have decided lis and rights of parties primarily on basis of section 3 of Act of 1962 and least discussed effects and implications of section 2-A of Act of 1962--Adjudication of lis in light of section 2-A is purely a question of law which does not require any investigation into facts or appreciation thereof--This Court being an Appellate Court, has jurisdiction to entertain and adjudicate upon pure question of law--There is no cavil that enforceability of section 2-A of Act of 1962 - which has retrospective effect – is a pure question of law--Appeal was dismissed.

[Pp. 178, 180, 182 & 183] A, B, C & D

1990 SCMR 1667 and PLD 1990 SC 1 ref.

Syed Muhammad Ali Gillani, Advocate for Appellants.

Malik Ashiq Muhammad Jamal, Advocate for Respondents.

Date of hearing: 09.12.2019.

Judgment

This regular second appeal, under Section 100 of the Code of Civil Procedure, 1908, (“The Code”) is directed against judgment and decree dated 29.02.1996, by learned Additional District Judge, Multan, whereby appeal of the appellants was dismissed and judgment and decree of 08.03.1989, by learned Civil Judge, Multan was upheld, where suit for declaration of the respondents was decreed.

‘Controversy in issue’

1. In the light of the submissions made, the controversy hinges on following elemental questions, which are;

i) What custom was prevalent and / or followed by the family of Nabi Baksh regarding the succession and alienation.

ii) Whether Mst. Jag Sabahi – who inherited property of her deceased son, Muhammad Bakhsh – had a limited or full interest in the property in question.

iii) Whether alienation by Mst. Jag Sabahi to her son-in-law and nephew through Mutation No. 1338 dated 27.03.1964 constitute a valid and legitimate exercise of customary law and rights in terms thereof – which allegedly prejudiced the rights of the reversioners, who claimed share in the estate of deceased Muhammad Bakhsh

iv) Whether alienation by Mst. Jag Sabahi – who claimed to have full/absolute interest in the property and alienated the property for good consideration and legal necessity – was contrary to the mandate of sections 2-A and 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act 1962 (‘Act 1962)

v) Whether the alienee of the property – son-in-law and nephew of Mst. Jag Sabahi in terms of Mutation No. 1388 dated 27.03.1964 – could be termed as bona-fide purchasers for consideration.

‘Essential Facts’

1. The contesting claims relate to land measuring 23 Kanals 15 Marlas, situated at Mauza Binda-Sandhila, Tehsil & District Multan (‘property’). Undisputedly, property, at one point in time, was owned by Mr. Nabi Baksh, which was inherited by his grandson Muhammad Bakhsh under customary dispensation– on account of pre-deceased death of Muhamad Baksh’s father Karim Baksh, son of Nabi Baksh. Nabi Bakhsh died on 15.10.1942 and Muhammad Bakhsh died on 15.12.1943. After the death of Muhammad Baksh, the property was inherited by his mother, Mst. Jag Sabahi through Mutation No. 795 dated 16.05.1944 under custom. Later on, Mst. Jag Sabahi alienated the property in question, against consideration and on account of alleged legal necessity, to her son-in-law (Ghulam Ali, predecessor of present appellants) and nephew vide Mutation No. 1388 dated 27.03.1964. The respondents – claimants as reversionary in the estate of deceased Muhammad Baksh – filed declaratory suit, alleging termination of limited interest of Mst. Jag Sabahi in property and also questioned alienation by Mst. Jag Sabahi, which action was contested on multiple grounds. Learned trial Court framed issues and recoded evidence, whereafter suit of the respondents was decreed on 12.01.1977. The judgment and decree were set aside by the learned appellate Courtvide judgment dated 28.02.1982, which remanded the matter while framing two additional issues. Upon conclusion of post-remand proceedings, learned trial Court decreed respondent’s suit on 08.03.1989, which decree was unsuccessfully appealed and same was dismissed by learned appellate Court on 29.02.1996. Hence, this second appeal.

‘Submissions of the counsels’

1. Learned counsel for the appellants submits, that concurrent findings by the Courts below and decisions made thereupon were erroneous and contrary to the law; determinations were carried out without appreciating material aspects of the case. Adds that simplicitor suit for possession was filed and Mutation No. 1338, dated 27.03.1964 – alienation by Mst. Jag Sabahi - was not impugned; respondents had pleaded custom however, failed to substantiate through convincing evidence the existence of any custom, its contours and let alone applicability thereof. Adds that, inheritance Mutation No. 795 contained no indication to any alleged custom, as basis of said mutation. Learned counsel emphasized that suit was barred by limitation, as inheritance Mutation No. 795 was recorded on 16.05.1944 and suit was filed in September 1968. Referred to judgments reported as “Mst. Lado and another v. Karam Dad and others” (PLD 1956 Lahore 528), (“Ghulam Rasool and 5 others v. Allah Bachaya and 17 others” (1985 SCMR 416), “Fazal Karim v. Member Board of Revenue and others” (1985 CLC 64) and “Mst. Zeba and 12 others v. Member-III Board Of Revenue Baluchistan and 2 others” (1986 CLC 233) in support of submissions – regarding failure to prove existence of custom and question of limitation.

2. Learned counsel appearing for the respondents controverted the submissions, who made reference to other agricultural lands of deceased Muhammad Baksh in Mauza’s of Alamdisura and Akbarpur, Tehsil Multan – which was inherited by Mst. Jag Sabahi as limited owner - wherein shares of the reversioners were acknowledged in terms of Muslim Personal Law, which Mutations were admitted and accordingly exhibited. Submits that suit was within limitation, wherein inheritance was claimed by the co-owners and challenge was thrown to alleged alienation, prejudicing rights of the reversioners. Learned counsel made reference to judgments reported as “Mohsin Khan and 3 others v. Ahmad Ali and 2 others” (PLD 2004 Lahore 1), “Mst. Umri v. Muhammad Boota and others” (1993 MLD 1620), “Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi” (PLD 1990 SC 1), “Dost Muhammad and another v. Ranjha through Legal Heirs and 7 others” (1989 SCMR 1014), “Abdullah v. Mst. Jannat Bibi and others” (1989 SCMR 735), “Muhammad Sham v. Mushtaque Ahmed through Legal Heirs and others” (1996 SCMR 856), Mst. Fooran v. Member, Board of Revenue and others” (1983 CLC 3134), “Bagh Ali and 3 others v. Mst. Zaiban and 11 others” (1989 CLC 1721), “Ahmad Hussain v. Haq Nawaz and others” (1989 CLC 795), “Muhammad Din etc. v. Allah Ditta etc.” (1994 CLC 1788), “Ismail and another v. Ghulam Qadir and others” (1990 SCMR 1667), “Ali Begum and 2 others v. Zar Dad Khan and 4 others” (1994 SCMR 1140), “Lal and 3 others v. Rehmat Bibi and another” (PLD 1991 SC 582) and “Abdul Ghafoor and others v. Muhammad Shafi and others” (PLD 1985 SC 407).

3. Arguments heard. Available record perused.

4. Learned counsel for the appellants emphasized that in view of lack of evidence, regarding existence of any special or general custom, the claim of exclusive inheritance of Mst. Jag Sabahi – being mother of deceased Muhammad Baksh – and her right of alienation cannot be questioned or dismissed. I have examined the judgments by the Courts below and read the findings of facts recorded, which showed that evidence, pro and contra, was led by the parties in support of their pleadings. The evidence led by predecessors of the appellants [DW-1 to DW-4] – including Mst. Jag Sabahi [DW-4] and Ghulam Ali [DW-3] - acknowledged existence of custom prevalent in ‘Binda-Sandhila’, which allegedly entitled her and reinforced full / absolute interest of Mst.Jag Sabahi in the property. On the contrary, respondents alleged in the plaint that family of Nabi Baksh was governed and followed Riwaj Zamindara Multan, which assertion was endorsed by their witnesses, i.e. PW-9, PW-2, PW-3. Mst. Jag Sabahi (DW-4) admitted following of Riwaj of Binda-Sandhila and further averred that she was not obligated by the Riwaj of Multan. It is critically noted that she admitted that Nabi Baksh, when died, was beholden by the custom and Shariat. Mst. Jag Sabahi admitted that property of Muhammad Baksh was in 3 Mauzas and in Mauza’s of Alamdisura and Akbarpur, Tehsil Multan, she inherited 1/8th share only. She also admitted that alienee Ghulam Ali was her son-in-law and resided with her. In short, there was no dispute that subject matter property was ancestral land, inherited by Muhammad Baksh under prevalent custom, as grandson of Nabi Baksh. It was not the case of Mst. Jag Sabahi that she inherited the property of her deceased son, Muhammad Baksh, under Muslim Personal Law.

8. The dispute inter-se the parties may spill over to various questions, regarding which custom was applicable and followed by the family, whether the Zamindara custom Multan was different from the custom of ‘Binda-Sandhila’ and what were the contours / features of each of the alleged custom. These disputes seemingly have significance for the parties and rights claimed by each of them but these disputes – regarding the custom – have lost their significance, efficacy and relevance in view of section 2-A of Act 1962 [inserted in terms of Ordinance XIII of 1983 dated 01.8.1983]. It is expedient to reproduce section 2-A of Act 1962, which reads as:

“[2-A. Succession prior to Act IX of 1948. Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law “(Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim:--

(a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat);

(b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation on directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act;

(c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith:

Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees.”]

[Emphasis supplied]

1. Upon promulgation thereof, the applicability and persuasive effect of custom stood eradicated for the purposes of disputes relating to succession, amongst the claimants / reversioners of “a male heir”, who had acquired any agricultural land under the custom from the person, who at the time of acquisition was a Muslim. The disputes inter-se the parties were not with respect to acquisition of property by Muhammad Baksh – male heir – but amongst the reversioners, who claimed succession / inheritance in the estate of the Muhammad Baksh – Mst jag Sabahi was one of the reversioners. In this behalf guidance is solicited from the judgment reported as “Lal and 3 others v. Rehmat Bibi and another” (PLD 1991 SC 582), relevant portion whereof is reproduced hereunder as:

“Leaving aside the question whether on the basis of the assumptions made by the learned counsel Mst. Taleh Bibi was or was not a limited owner and whether or not she could make gift of the entire property the fact remains that section 2-A as held in the case of Abdul Ghafoor being retrospective the devolution even if it took place in 1940 would not be deemed to be under custom. In several subsequent judgments of this Court including Ismail and another v. Ghulam Qadir and others 1990 SCMR 1667 the view has been followed that section 2-A has a strong retrospective effect. Regarding the second question also although none of the learned counsel has taken out the relevant decisions of this Court, it has already been held that the law as enacted in section 2- A(a) contains a command that the acquisition of agricultural land before the enactment of the 1948 (Shariat) Application Act by a male heir though in fact under custom from his predecessor-in-interest who was a Muslim yet the heir “shall be deemed to have become on such acquisition an absolute owner of such land as if such land devolved upon him under the Muslim Personal Law”. This command when applied to the present case would mean that Allah Ditta a male heir having acquired agricultural land under custom from the person who at the time of such acquisition was a Muslim had by virtue of the deeming provision in subsection (a) of section 2-A, become an absolute owner of the land as if such land devolved on him under the Muslim Personal Law.

[Emphasis supplied]

1. In somewhat, similar circumstances, the alleged claim of Mst.Hussainan, in the case of “Ismail and another v. Ghulam Qadir and others” (1990 SCMR 1667) was denied, upon construction of Section 2-A of Act 1962. The question of limitation was also addressed therein. It is expedient to reproduce relevant portion thereof hereunder as:

“Learned counsel for the appellants , however, also reiterated the point of limitation. In view of the above stated changed position, vis-à-vis, the promulgation of Muslim Law of inheritance, Mst. Hussainan shall be deemed to have held the property as custodian and co- sharer on behalf of all the other heirs who were entitled under the Muslim Law to inherit the property of Nawahi Dad at the time of his death. As held in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, the property devolved instantaneously on the heirs and thus the suit of the respondents as held in the said judgment would have to be treated as within limitation. This is an additional ground for over-ruling the objection regarding limitation though the learned Judge in the High Court gave different valid reasons for coming to the conclusion that the suit in this case was not time-barred”.

[Emphasis supplied]

11. It is pertinent to note that since the acquisition of property by Muhammad Baksh – being male heir – is not disputed therefore, limitations prescribed under section 2-A of Act 1962 were not applicable. Mst. Jag Sabahi, upon promulgation of section 2-A, ibid, filed application seeking abatement of pending suit, which application was dismissed by learned trial Court vide order dated 22.09.1988 in view of the command of section 3 of Act 1962 – regarding termination of limited interest of Mst. Jag Sabahi. The cases of Ghulam Rasool and 5 others (supra) and Fazal Karim (supra) and Mst. Lado and another (supra) as referred by learned counsel for the appellants have no application to the facts of this case. In view of section 2-A, ibid – having retrospective effect – succession of Muhammad Baksh would open on the date of his death, which estate would be distributed amongst reversioners according to Muslim Personal Law. Reference is made to the judgment in case reported as “Muhammad Yousuf through Legal Heirs and 2 others v. Mst. Karam Khatoon through Legal Heirs and 2 others” 2003 SCMR 1535, relevant portion whereof is reproduced hereunder as:

“It was observed that a male heir who acquired agricultural under custom from a Muslim prior to 15th March, 1948 would be held to have inherited under Muslim Law. His heirs would be discovered in accordance with the Muslim Law. Such heirs could be male as well as female. If a female derives limited interest from any such male heir (having become absolute owner under section 2A), would not be able to keep land in excess of heir Sharai share under the Muslim Law. She will act as a conduit to pass the remaining land to the other heirs of such a male heir. This Court had further observed that the conclusion aforesaid emerges out of the combined reading of sections 3, 4 and 5 read with newly-added section 2A. If so read together, the omission in section 2A of a female, is of not much significance.”

1. It is apt to make reference to a recent judgment by the Apex Court – wherein plethora of Case Law on section 2-A of Act 1962 were highlighted and discussed [which construction of section 2-A of Act 1962 was agreed by their lordships though differing with the conclusion of the case on basis of facts involved therein] – in a case reported as “Ghulam Haider and others v. Murad through Legal Representatives and others” (PLD 2012 Supreme Court 501), relevant portion whereof is reproduced hereunder as:

“7. It is abundantly clear to us that section 2-A introduced through Ordinance XIII of 1983 was meant to cover all successions prior to introduction of Act IX of 1948, i.e. all successions before March 15, 1948; it dealt with only male heirs; and it was restricted to only those male heirs who had acquired any agricultural land under custom from a person who at the time of such acquisition was a Muslim. In plain terms section 2-A introduced through Ordinance XIII of 1983 was meant to be applicable to only those male heirs who had acquired some agricultural land from a Muslim before March 15, 1948 and such acquisition had come about under the customary law of inheritance. According to section 2-A introduced through Ordinance XIII of 1983 such a male heir acquiring any agricultural land under the customary law of inheritance from a Muslim was to be deemed to have become, upon such “acquisition”, an absolute owner of “such land”, as if “such land” had devolved on him under the Muslim Personal Law (Shariat). It is of paramount importance to notice that the words used in section 2-A introduced through Ordinance XIII of 1983 were “had acquired” and “such acquisition” and the person so acquiring was to become an absolute owner of “such land” as if “such land” had devolved on him under the Muslim Personal Law (Shariat). It is quite clear to us that what the legislature had intended was that the entire agricultural land acquired by such person under the customary law of inheritance was to be recognized as under his absolute ownership as if such acquisition had come about under the Islamic law of inheritance and nothing in section 2-A introduced through Ordinance XIII of 1983 has been found by us to be conveying any meaning that such person was to be deemed to have become an absolute owner of only that part of the acquired land which would have otherwise devolved on him as his share of inheritance under the Islamic law of inheritance. The deeming provision contained in clause (a) of section 2-A introduced through Ordinance XIII of 1983 in fact covered the entire acquisition and the entire land acquired and was never meant to be restricted to some portion or share of the acquired land. It appears to us that the intention of the legislature was that the entire devolution on the basis of the customary law of inheritance was meant to be saved by section 2-A and such devolution, in its entirety, was meant to be deemed to have been under the Islamic law of inheritance”.

13. Now I take the objection of limitation. The submissions by learned counsel for the appellants are misconceived. It was not a suit to challenge Mutation No. 795 dated 16.05.1944 but claim of inheritance by the reversioners with respect to the estate of deceased Muhammad Baksh. The respondents have had, for all intent and purposes, questioned the factum of alienation by Mst. Jag Sabahi vide Mutation No. 1338 dated 27.03.1964 to her son-in-law on the premise that her limited interest in the property stood terminated in terms of section 3 of Act 1962 [whereupon the limited interest of Mst. Jag Sabahi in the property stood terminated with effect from 31.12.1962], which right to sue accrued to respondents upon alienation of property, which right was, otherwise, continuing. Notwithstanding, upon the promulgation of section 2-A of Act 1962, the respondents became co-owners of the property and entitled to claim share in the property, which claim cannot be denied on the objection of limitation. The ratio in the case of “Ismail and another v. Ghulam Qadir and others” (1990 SCMR 1667) is apt. Reliance of the counsel of the respondents on the reasoning in case reported as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi” (PLD 1990 SC 1) is relevant. The case of Mst. Zeba and 12 others (supra), referred by learned counsel for the appellants is distinguishable and has no application to the case at hand.

14. The case of the beneficiaries of Mutation No. 1338 dated 27.03.1964 fails both on merits and law. The claim of bona-fide purchasers was neither established nor sustainable in view of the law, precisely in terms of section 2-A of Act of 1962.

1. The terminus quo date for the opening of succession of Muhammad Baksh was date of his demise, i.e. 15.12.1943 whereupon estate of deceased Muhammad Baksh would ipso-facto devolved upon the legal heirs/reversioners and same become entitled to get their respective shares in accordance with the Muslim Personal Law. I have examined the judgments by the Courts below and do not find any error of law and or ignorance of the material facts / aspects of the case. The findings were neither erroneous nor contrary to law.

16. It is noted that the Courts below have decided the lis and the rights of the parties primarily on the basis of section 3 of Act of 1962 and least discussed the effects and implications of section 2-A of Act of 1962. The adjudication of the lis in the light of section 2-A is purely a question of law which does not require any investigation into facts or appreciation thereof. This Court being an Appellate Court, has the jurisdiction to entertain and adjudicate upon pure question of law. There is no cavil that enforceability of section 2-A of Act of 1962 - which has retrospective effect – is a pure question of law. Guidance is solicited from ratio of the decision in case reported as “Haji Abdullah Khan and others v. Nisar Muhammad Khan and others” (PLD 1965 SC 690), relevant portion whereof is reproduced hereunder:

“We find ourselves in agreement, however, with learned counsel for the appellants that the points which had been raised as to the effect of the minority of the plaintiffs on the validity of the agreement for sale as well as on the question as to whether the agreement should be specifically enforced in a suit by a minor were such that permission to argue them ought to have been granted. They all are as we will presently show pure questions of law and we do not think the proposition is open to contest that pure questions of law can be raised at any stage. ------

It may pointed out that it is the duty of the Court itself to apply the law. A party is not bound to engage a counsel. Whatever law becomes applicable on the admitted or proved facts law has to be given effect to whether or not it has been relied upon by a party.”

In view of the aforesaid I decide this appeal in terms of section 2-A of Act of 1962, which does not cause prejudice to any party.

1. In view of the above this appeal is devoid of any merit and same is therefore, dismissed with no order as to the costs.

(Y.A.)

PLJ 2020 Lahore 184

Present:Abid Aziz Sheikh, J.

ALI IMRAN--Petitioner

versus

FOREST WILD LIFE AND FISHERY DEPARTMENT through SECRETARY GOVT. OF PUNJAB and 3 others--Respondents

W.P. No. 35700 of 2016, heard on 31.10.2019.

Constitution of Pakistan, 1973--

----Arts. 9, 14 & 199--Wild life (Protection, Preservation, Conservation and Management Control) Act, 1974, S. 2(n), 9(ii)--Hunting of black bucks and deers--Appointment of commission--Submission of report--Fundamental duty of Government--Implementation of recommendations--Direction to--Black buck deer is endangered species, protected under Act--Section 2(n) of Act provides definition of protected animals and Section 9(ii) of Act put a restriction on hunting of protected animals--Black buck deer is one of endangered species and protection of such species is not only fundamental duty of government but of every citizen to ensure right to life guaranteed under Constitution--Law Officer has placed on record written instructions from Government of Punjab (Forestry, Wild Life and Fisheries Department) and stated that Department endorses above Black Bucks Commission Report containing certain recommendations for protection of endangered species of Black Bucks--Provincial Government is further directed to ensure that obligations under relevant laws including Act are fulfilled for protection of Black Buck--To ensure implementation of recommendations made in Black Bucks Commission Report, it is also directed that Black Bucks Commission shall meet once every six months for next three years and report to this Court through Deputy Registrar (Judicial) on progress and implementation of Blacks Bucks Commission’s Report--Petition was disposed of.

[Pp. 197, & 198] A, B, C & D

2016 SCMR 48 ref.

Mr. Sheraz Zaka, Advocate for Petitioner.

Dr. Parvez Hassan, Senior Advocate Supreme Court, Head of Black Bucks Commission alongwith Mr. Asad Ahmad Ghani, Advocate, Mr. Saqib Haroon Chishti, AAG alongwith Lt. (R) Sohail Ashraf, D.G. Wildlife for Respondents.

Date of hearing: 31.10.2019.

Judgment

This constitutional petition has been filed by way of public interest litigation for the protection of endangered species of black bucks and deer which is virtually getting extinct.

1. The main contention of the petitioner is that black bucks are protected animals under the Punjab Wild Life (Protection, Preservation, Conservation and Management Control) Act, 1974 (Act) but appropriate measures are not being taken to protect black bucks and deer, who are not only dying but also being hunted. The claim of the petitioner is that respondents are required to maintain proper measures for preservation and protection of black bucks and deer.

2. This Court vide order dated 26.06.2018 appointed a commission to be headed by Dr. Parvez Hassan, Senior Advocate Supreme Court (Black Bucks Commission) to submit report regarding condition of Black Bucks in Lal Suhanra, National Park Bahawalpur and the possibility of progressively releasing of Black Bucks in Cholistan Desert and to finally suggest measures which can be taken by the Government in order to ensure that no poaching of Black Bucks and other deer take place in the Cholistan Desert.

3. The Black Bucks Commission after various meetings, deliberations and spot visits, recommended a comprehensive plan for the reintroduction of Black Bucks in the Cholistan in its final report dated 06.09.2019. The relevant measures and suggestions for reintroduction of the Black Bucks as recommended by the Black Bucks Commission in its final report are as under:

4. Reintroduction of Blackbuck

(1) The reintroduction of blackbuck is possible and is recommended. But it entails many challenges and reintroduction should only be undertaken if the challenges are first and duly met.

(2) The reintroduction should be planned as a ‘conservation reintroduction’ which also entails restoring the ecological function of the species. This planning should also be engaged or at least have a review by international experts either from the IUCN Reintroduction Specialist Group and/or IUCN Antelope Specialist Group. It is recommended that the Punjab Forest, Wildlife and Fisheries Department organize a workshop to bring together relevant, small group of experts to devise a plan specific to blackbuck reintroduction.

(3) The first and foremost aspect of any reintroduction planning is ensuring that the original threats that had caused the decline of the species have been removed. In case of Pakistan, the two major factors were hunting and habitat degradation. The authorities have not been able to control the hunting of chinkara and nilgai in the wild and this is a reflection of the fact that factors that had caused the extinction of blackbuck still prevail.

(4) As the reintroduction of the blackbuck is an important recommendation, the Commission cautions that it has to be carefully planned, keeping in mind that implementation of a reintroduction project is largely a bottom up approach and, therefore, the involvement and. ownership of local communities is the most important aspect. This is particularly relevant to those that have customary rights, e.g., livestock holders, indigenous people, and those dependent on the habitat in any manner such as wood collectors.

(5) A site-specific Conservation Action Plan for Blackbuck is needed and agreed between stakeholders including the Government, conservation organizations (such as WWF, IUCN, Deer Foundation International) and local community. A similar example is available in case of the Shuklaphanta Wildlife Reserve (2016 - 2020) in Nepal which is an exclusive plan for a particular site for the re-establishment of a wild population of the species.

(6) An important aspect of reintroduction is to understand the changes that might have occurred over time in the habitat. It is highly recommended to conduct a GIS based study to understand, such aspects.

(7) The population of blackbuck in the National Park is highly inbred and all the blackbucks in the captive facilities have been sourced from the National Park. It is important that blackbucks, particularly female, are brought from other facilities on priority. The genetic fitness of the blackbuck used for reintroduction is crucial to the success of the reintroduction.

(8) The Punjab Wildlife and Parks Department should keep updating the record of all blackbuck in Punjab and other provinces along with the sex ratio. Data of blackbuck in individual ownership is not available as the registered private breeding farms also sell animals to individuals and monitoring system by the Punjab Wildlife and Parks Department needs improvement. The trophies from expired animals can potentially end up in illegal wildlife trade.

(9) The Punjab Wildlife and Parks Department can organize private breeding farm owners to support blackbuck conservation breeding and maintain database to sustain a genetically diverse population through exchange of animals. There can be some incentives for this venture.

(10) RD-65 Deer Enclosure in the National Park originally housed all the population of blackbuck in the National Park. But over time, the fence of this Enclosure, being old and depleted at number of places, was not considered secure to house the blackbucks due to which the animals were shifted to a smaller enclosure of 1 Km x 1 Km (1000 m x 1000 m) constructed inside the same RD 65. This space is insufficient for the animals being reared for release to the natural habitat. It is recommended that all female blackbucks in the small enclosure of RD 65 be shifted to the Houbara and Deer Foundation Enclosure (15 Kms x 4 Kms) in the National Park and the surplus male blackbucks from this Enclosure may be provided to the zoos, wildlife safari parks, and government-owned or private wildlife farms. The facility managed by the Houbara and Deer Foundation, at present, has a skewed sex ratio - 96 males and 38 females. The breeding potential survival and fitness of the population will enhance if females outnumber males. The Punjab Wildlife and Parks Department can support this by the proposed transfer of females from RD 65 to the Houbara and Deer Foundation Enclosure. Females could also be acquired from others facilities including through imports as indicated in Section H. 2(b) above.

(11) The blackbuck lives in groups, never solitary, mix sex groups 5- 20 animals and even bachelor groups. Single sex groups have been successfully formed for the blackbuck in captivity, removing young from the group earlier on similar arrangements can be made to manage correct mixed sex groups in the National Park.

(12) Comprehensive veterinary care and vaccination programme for the livestock will be needed around the habitat in the National Park finalised for reintroduction of blackbuck and should begin immediately to ensure that there is no loss of a reintroduced population due to disease transmission from livestock.

1. Anti-Poaching and Predator Control

(1) An effective implementation of the 1974 Punjab Wildlife Act and the proposed Punjab Protected Areas Act, 2019, with the better-resourced and well-trained staff of game wardens, reinforced by “deterrent” penalties and backed by the support of local communities, all recommended by the Commission, will provide the best safeguards against poaching of the reintroduced blackbuck in the Cholistan Desert.

(2) The habitat areas of the blackbuck need to be effectively monitored for anti-poaching activities with the co-operation between the Army, law enforcing agencies and civil society.

(3) Culling of stray dogs will be required as they hunt on the calves/fawn of ungulates in the wild. A linked aspect is availability of food for the stray dogs which will require a proper management of solid waste.

(4) Jackals continue to be the dominant predator. A. population survey of jackals is essential for any recommendation in respect of their control.

1. Other Suggestions

(1) The Government should ensure that the protected areas under the proposed Punjab Protected Areas Act, 2019, are not reduced or shrunk, directly or indirectly. In fact, there is a need to increase and expand it supporting the Convention on Biological Diversity (CBD).

(2) Deformed blackbucks should be euthanized using the most humane practice which usually includes darting the animal with an anesthetic agent and then giving IV dose of a euthanasia agent (American Veterinary Medical Association, 2013). It is not recommended, and it is considered unethical to have trophy hunting for those animals which are heavily domesticated and which do not run to save themselves. Further, hunting of any animal inside a fenced area is not defined as trophy hunting by the IUCN and it is referred as ‘canned hunting’ (IUCN, 2016). Trophy hunting should, accordingly, be conducted as a community based programme as per the IUCN Guidelines (IUCN/SSC, 2012), Annexure 12. It should not be allowed unless a viable/sustainable population has been established in the wild. Trophy hunting may, however, be allowed for surplus male blackbuck from the Houbara and Deer Foundation Enclosure.

(3) Any trophy hunting permit should be subject to a thorough population survey and monitoring and adaptive management. If any adverse impacts are seen, it must be stopped and. if population continues to grow, trophy hunting of carefully selected animals can continue.

(4) There should be a notified trophy hunting license fee (for international and local hunters) as is the case with other ungulate species in Pakistan and it should be reviewed annually. The trophy hunting should be led as a programme of the Government with NGOs and local community. This would also require registration or nomination of the suitable community organizations. In case of international hunters, the CITES Management Authority of Pakistan must be fully involved.

(5) The experience under the Punjab Urial Conservation, Protection and Trophy Hunting (Committees) Rules, 2016, should be useful in the economic incentives provided to the local communities. The Commission also suggests that trophy hunting of the blackbuck should not be the only incentive for the communities; there should be more opportunities for them in employment related to conservation interventions and/or tourism related economic support.

(6) The basic function of a captive animal facility is conservation awareness of masses. The educational potential of the National Park has not been fully utilised. There should be information signs of international standards, education officers, restoration of the Patisar lake, and with it, a bird watching hut.

(7) There should be a short, professionally made (10- 15 minutes) documentary on the National Park and Cholistan Game Reserve.

(8) Appropriate amendments should be made in the 1974 Punjab Wildlife Act in support of the recommendations of the Commission. It is essential to involve the local communities in Cholistan in the conservation and reintroduction of the blackbuck. The amendments should also accommodate community conservation areas which would support future post- release conservation efforts of blackbuck. There is also a need to increase penalties for illegal hunting.

(9) Establish a Blackbuck Research Unit in the Cholistan University of Veterinary Sciences or the Islamia University, Bahawalpur to enhance the research efforts on blackbuck in Cholistan.

(10) The National Park should be restored and managed in the true spirit of a UNESCO biosphere reserve.

(11) Globally, many protected areas are now managed using SMART - Spatial Monitoring and Reporting Tool. This tool helps in measuring, evaluating and improving the effectiveness of wildlife laws, patrols and site-based conservation activities. It is open sourced software and some trainings have already been done in Pakistan. Applying this in the National Park can effectively improve the management and protection of the area and this can be spread to the Cholistan Desert to protect other species such as chinkara.

J. Essential Requirements for Blackbuck Reintroduction

1. Planning and community stewardship

Planning and having all the stakeholders on board including local communities is pivotal to any conservation project. Community ownership needs to be established and local people should become stewards of blackbuck conservation. A share in trophy hunting should not be the only incentive for the local communities because trophy hunting should not be allowed unless a population has been established in the wild. An important indicator of a successful reintroduction project is breeding of the reintroduced population. Other incentives may include local employment, improvement of livestock health, community development initiatives, tourism, night safari and camping engagement communities etc.

1. Mitigating threats and zonation of the National Park and Cholistan Game Reserve

The IUCN Guidelines emphasize that threats that led to the extinction should be eradicated, illegal hunting and poaching of fawn was a serious issue and this needs to be managed and chinkara hunting can be indicative of effective law enforcement.

Joint management of different Departments is needed and a Management Plan for the Lal Suhanra National Park and Cholistan Game Reserve needs to be formally developed and budgeted for and reintroduction can begin with the National Park. The National Park needs a core area purely for biodiversity conservation; this zonation is also a requirement of a UNESCO biosphere reserve.

1. Management strategies

Appropriate habitat selection for release is critical. There may be some possible management strategies needed which are based on monitoring of the released herd (which should be ideally satellite tagged). These can be variable, for ( example it may include supplementary feeding or provision of water or include fencing of agricultural areas to minimize conflict of introduced blackbuck with local communities. Chain-link fencing of a sizable habitat patch, where the animals seek daytime shelter, combined, with other local protective methods in the cultivated areas would be helpful (Chauhan and Singh, 1990). Extreme measure seven include recapturing of released animals if the need arises, the safety of animals is foremost.

1. Selection of herd of release

The most important factor is having a genetically fit, compatible herd selected for release, and this must be acclimatized to the conditions of wild. In this respect the enclosure established by the Deer Foundation International is ideal. More understanding of the group structures within this enclosure is needed to determine the fitness for release.

The herd size for release should not be too small as it will have low breeding potential and more likelihood of becoming extinct. It should comprise of at least 30-50 animals with a minimum 1:4 ratio of male to female.

1. Risk assessment:

The plan must incorporate all the likely risks to the reintroduction and strategize the remedial measures.

Likely risks to blackbuck reintroduction are tabulated below with suggested remedial measures. Usually such assessment is done in a workshop included in the Recommendations above.

Risk assessment

| | | | | --- | --- | --- | | # | Risks | Mitigation | | 1. | Illegal hunting/poaching of fawns | Patrolling teams, joint management and inter departmental coordination. Capacity building of communities and establishing community conservation areas which are also encouraged under the Convention of Biological Diversity. | | 2. | Predator prey interaction | Unnatural predators e.g. stray dogs near human inhabitation, should regularly culled and dumping sites of waste managed. Management decision can be taken for common wild predators e.g jackals | | 3. | Disease outbreak/ transmission from livestock | The animals to be reintroduced should be vaccinated. Livestock veterinary care improvement and restriction in free grazing | | 4. | Competition with other ungulates in the habitat sharing the same ecological niche e.g chinkara | Selection of habitat which does not overlap with other ungulate, monitoring of reintroduced animals through satellite tags so study the range and if they are moving to areas with either more livestock/poor habitat quality etc. | | 5. | Inadequate resources and capacity | This can be serious and a constant monitoring of funds and opportunities for more fundraising would be needed. It will be good to involve corporates. | | 6. | Inadequate transparency | Everything needs to be transparent and information should be available. This is also listed in the IUCN Reintroduction Guidelines. | | 7. | Drought | Supplementary feeding and artificial waterholes | | 8. | Conflict with communities | Fencing of agriculture areas or possibly compensation. Community stewardship and. incentives. |

1. Funding and Resources

The Punjab Wildlife and Parks Department has already set up a ‘Blackbuck Conservation Fund’ which currently comprises of the trophy hunting license fees generated by the Deer Foundation International.

The Punjab Wildlife and Parks Departments has also developed a project for reintroduction. It must be borne in mind that a reintroduction programme is resource intensive and requires long term commitment. Fundraising for the blackbuck through internationally donor organizations will be challenging as these organisations are more geared towards supporting projects that involve conservation of those species that are already threatened in the wild. Considering that the blackbuck is globally in the category of ‘Least concern’, it is unlikely to receive attention of donor organizations such as GEF, Disney Conservation Fund, and The Whitley Fund. This would require more self sustaining ventures which can include ecotourism, integration of some conservation fee into the Cholistan cultural and sports events, funds generated through ticket money of visitors to captive facilities in the National Park.

K. IUCN Reintroduction Guidelines

The IUCN Reintroduction Guidelines provide the most comprehensive and well researched, document for any reintroduction planning. The account below summarises these Guidelines to comprehend that reintroduction requires thorough planning and it is not a measure that should be taken lightly.

Conservation translocation is the premeditated movement of organisms which provides conservation benefits to the whole ecosystem. There are different types of translocations, one of which is reintroduction. Reintroduction involves the release of species into areas where they previously ranged, in the absence of conspecifics. Its aim is to establish a sustainable population of the principal species within their native region.

Reintroduction of species, though aids the process of conservation, needs justification. A feasibility assessment should be conducted which must include a balance of expected benefits against the risks. Moreover, it must be done only when there is substantial evidence about the absence of threats that led to the previous extinction. Hence, presence of high degree of uncertainty inhibits reintroductions and other types of conservation translocations. Even though introduction may seem a favorable option, former natural habitats may no longer be suitable. Therefore, returning the species to the place where they were found, may not be suitable.

Once the project of reintroduction is conceptualized, its design and execution should follow the standard stages of a project design and management which includes gathering baseline information, analysis of threats and regular monitoring. A project based on these stages will help to ensure that the habitat meets all the biotic and abiotic requirements of the species. Whereas the process of monitoring will allow identification of new threats, leading to subsequent adjustments. Most importantly, human interests must not be ignored throughout the project and social, economic and political factors must be kept under consideration.

The whole process of translocation needs to be recorded and the public should have access to the results. This would help in future conservation projects and create awareness within the society.

• Translocation is an effective conservation tool but its use either on its own or in conjunction with other conservation solutions needs rigorous justification. Feasibility assessment should include a balance of the conservation benefits against the costs and risks of both the translocation and alternative conservation actions.

• Attempts to reintroduce a species, if poorly conceived or implemented, may actually obscure the conservation issues that led to the decline of the species in the first place — and thus may detract from, rather than add to, a species chances of survival. (IUCN1987)

• There should generally be strong evidence that the threat(s) that caused any previous extinction have been correctly identified and removed or sufficiently reduced.

• Any conservation translocation should follow a logical process from initial concept to design, feasibility and risk assessment, decision-making, implementation, monitoring, adjustment and evaluation.

• Risk is the probability of a risk factor occurring, combined with the severity of its impact. Individual risks will generally increase as the following increase in scale:

1. The duration of any extinction period, 2. The extent of ecological change during any extinction period, 3. The degree of critical dependence of the focal species on others, 4. The number of species to be translocated, 5. The genetic differences between the original form and the translocated individuals, 6. The potential negative impacts on human interests, 7. The probability of unacceptable ecological impacts, 8. Whether the translocation is into or outside indigenous range.

• Many aspects of the translocated organisms’ biology are relevant to the release strategy.

• The age/size, sex composition and social relationships of founders may be optimised for establishment and the population growth rate stated in the objectives, • Translocation success increases with the numbers of individuals released (which is often enhanced through multiple release events across more than one year), • The monitoring programme is the means to measure the performance of released organisms against objectives, to assess impacts, and provide the basis for adjusting objectives or adapting management regimes or activating an exit strategy. Adequate resources for monitoring should be part of financial feasibility and commitment.

• The translocation of captive-bred animals should follow a precise four-step protocol: feasibility study, preparation phase, release phase, and monitoring phase.

• The declining or extinction factors should be highlighted and removed before release into the wild.

• It is highly recommended that the release sites be prepared using habitat management techniques to maximize the survival probabilities.

• The release must be preceded by accurate veterinary control.

• A reintroduction plan can be considered successful only when the following points are satisfied the offspring of the founders start to breed, a minimum viable population (MVP) is reached and maintained, and the recruitment rate is higher than the adult death rate for three years.

• Captive breeding is often used together with translocation projects, such as reintroduction and population reinforcement, but it must be stressed that these kinds of measures need to be carefully projected, because they could have many unexpected negative effects and should be always subordinated to habitat conservation.

• The projects should involve the preparation and education of local people.

• The genetically and geographically closest populations should be chosen for breeding and translocation, to preserve genetic identity and homogeneity.

• It could be advisable to vaccinate the founders to limit the mortality due to local diseases.

• In the wild, individuals with superior abilities stand the greatest chance of long-term survival, reaching sexual maturity and passing their genes on to future generations. In captivity, most animals receive total institutional care. They do not require the same skills and physical traits that their wild counterparts require. Undesirable attributes may be carried forward from generation to generation because natural selection is not playing a part (emphasis added).

L. Reintroductions of Ungulates Globally

There are numerous successful reintroductions of ungulates globally. One of the most iconic is perhaps of the Przewalski’s horse. Mongolia’s last group of takhi (Przewalski’s horse) was spotted around 1969. It took another 20 years for conservation and breeding programs to become effective and for the horse to show signs that it might survive. By 1990, the population had reached nearly a thousand, with 961 P-horses living in over 129 institutions in 33 countries— enough to try reintroducing the takhi to the wild. All of today’s reintroduced takhi descend from just 12 captured horses and several cross-breeding.

Some of the horses could not be released into the wild directly from zoos—the animals needed a “semi-reserve” area, a sort of base camp in the form of a fenced enclosure, for acclimatization.

After a 2-year period of captive management, the first herd of 10 animals was released to the wild on 31 January 1982.

5. The black buck deer is endangered species, protected under the Act. Section 2(n) of the Act provides the definition of protected animals and Section 9(ii) of Act put a restriction on the hunting of protected animals. In the third schedule of the Act at serial No. 67 of 2nd category of mammals, the black buck (Antelope Cervicopra) is mentioned as protected animal. Therefore, the Provincial Government is required to protect and preserve black buck deer in compliance of provision of the Act.

6. The Hon’ble Supreme Court of Pakistan in case of Province of Punjab vs. Lal Khan (2016 SCMR 48) observed that the right to life guaranteed under Article 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution) includes right to live in a world that has an abundance of all species not only for the duration of our lives but available for our progeny too. It has now been scientifically established that if the earth becomes bereft of birds, animals, insects, trees, plants, clean rivers, unpolluted air and soil, it will be the precursor of our destruction/extinction. The black buck deer is one of the endangered species and protection of such species is

not only fundamental duty of government but of every citizen to ensure right to life guaranteed under Constitution.

7. The learned Law Officer has placed on record the written instructions from the Government of Punjab (Forestry, Wild Life and Fisheries Department) and stated that the Department endorses the above Black Bucks Commission Report dated 06.09.2019 containing certain recommendations for the protection of endangered species of Black Bucks. The learned counsel for the petitioner also submits that this writ petition may be disposed of in terms of the Black Bucks Commission Report dated 06.09.2019.

8. In view of above discussion and also for consensus developed between the parties, this petition is disposed of in terms of the recommendations made by the Black Bucks Commission in its report dated 06.09.2019, for the protection of the endangered species of Black Bucks. The Provincial Government is further directed to ensure that the obligations under the relevant laws including the Act are fulfilled for protection of Black Buck. To ensure the implementation of the recommendations made in the Black Bucks Commission Report, it is also directed that Black Bucks Commission shall meet once every six months for next three years and report to this Court through the Deputy Registrar (Judicial) on the progress and implementation of Blacks Bucks Commission’s Report.

1. Before parting with this judgment, this Court must place on record its appreciation for the hard work untaken by the Black Buck Commission headed by Dr. Parvez Hassan, Senior Advocate Supreme Court. This Court also appreciates the effort of the petitioner and his learned counsel for highlighting this important issue in the public interest litigation.

(Y.A.) Petition Dismissed

PLJ 2020 Lahore 198 (DB)

Present:Sayyed Mazahar Ali Akbar Naqvi and Muhammad Waheed Khan, JJ.

SIRAJ AHMED ADVOCATE HIGH COURT--Appellant

versus

SHO, P.S. OLD ANARKALI LAHORE and 6 others--Respondents

I.C.A. No. 1811 of 2015, decided on 11.2.2019.

Law Reforms Ordinance, 1972--

----S. 3--Application for registration of FIR--Allegation of stealing certain documents--Filling of petition for registration of case before justice of peace--Disposed of with direction to registered case--Filling of write for contempt proceedings--Dismissed--Challenge to--We are of considered view that he proceeded in matter in accordance with law and no violation of any order as alleged by appellant was committed, hence, learned Single Judge rightly dismissed contempt petition--Appellant has failed to point out any illegality floating on record compelling us to interfere in impugned order--Petition was dismissed. [Pp. 200 & 201] B

Police Rules, 1934--

----R. 24(4)--Duty of S.H.O.--According to Article 24(4) of Police Rules, 1934 it is duty of every Station House Officer to probe contents of application filed before him, even it is found to be doubted and record its proceedings in relevant register. [P. 200] A

PLD 2018 SC 595 ref.

Appellant in person.

Mian Junaid Razzaq, AAG with Respondent No. 2.

Date of hearing: 11.2.2019.

Order

By means of instant Intra Court Appeal filed in terms of Section 3 of the Law Reforms Ordinance, 1972, the appellant has assailed the vires of impugned order dated 27.10.2015; whereby Crl Org. No. 879-W/2015fded by him seeking initiation of contempt proceedings against the respondent/SHO for flouting the order dated 27.03.2015 passed in Writ Petition No. 6560/2015 was dismissed.

1. At the very outset the appellant present in person submits that the impugned order has been passed by learned Single Judge in Chamber in derogation to material available on record. Main crux of arguments of the appellant is that bare perusal of application filed by him discloses that the proposed accused stole away personal and professional articles of the appellant. Next submits that while taking into consideration the contents of the application of the appellant, learned Ex-Officio Justice of Peace passed direction to the SHO to register the case. Appellant vehemently contends that the occurrence pertains to the year 2015; however, despite of the fact that respondent/SHO gave undertaking for complying with the order of the learned Ex-Officio Justice of Peace, which fact has been incorporated in the order dated 27.03.2015 passed in Writ Petition No. 6560/2015, he has flouted the order, which aspect of the case escaped notice of the learned Single Bench. He prays for an appropriate order/direction in the circumstances.

2. On the other hand learned AAG vehemently opposes the contentions raised by the appellant. He contends that the application of the appellant filed before SHO was probed, however, its contents were found to be fake/frivolous as such while completing all requisite legal formalities, proceedings under Article 24(4) of Police Rules, 1934, were carried out, which fact also finds mention in the relevant register maintained at Police Station. Learned Law Officer contends that while taking into consideration this aspect learned Single Judge in Chamber rightly dismissed contempt petition of the appellant, hence, the instant ICA is liable to be dismissed.

3. We have considered the arguments advanced on behalf of both sides and gone through the record available on file.

5. Record available on file reflects that the appellant moved an application before the SHO/respondent thereby leveling the allegation of stealing certain articles (bags, Court files, etc.) against the proposed accused. Subsequently upon his petition filed in terms of Section 22-A, 22-B, Cr.P.C. learned Ex-Officio Justice of Peace directed the SHO to proceed in accordance with law. The application of the appellant was probed, however, its contents were found false as such proceedings under Article 24(4) of Police Rules, 1934, were carried out, which fact stands also incorporated in the relevant register maintained at the concerned Police Station. According to Article 24(4) of Police Rules, 1934 it is the duty of the every Station House Officer to probe the contents of application filed before him, even it is found to be doubted and record its proceedings in the relevant register. Guidance in this regard is sought from the ratio decidendi of august Supreme Court of Pakistan in the case of Mst. Sughran Bibi vs. The State (PLD 2018 Supreme Court 595), relevant extract out of which is reproduced as under:

“According to Article 4(1) (j) of the Police Order, 2002 it is a duty of every police officer to “apprehend all persons whom he is legally authorized to apprehend and for whose apprehension sufficient grounds exist. “ Rules 24.1, 24.4 and 24.7 of the Police Rules, 1934 (which are still in vogue due to the provisions of Article 185 of the Police Order, 2002) clearly contemplate situations where an information received by the police regarding commission of a cognizable offence may be doubted or even found false.”

When the proceedings carried out by the respondent/SHO are evaluated on the touchstone of guidelines given by august Supreme Court of Pakistan in the judgment cited (supra) we are of the considered view that he proceeded in the matter in accordance with

law and no violation of any order as alleged by the appellant was committed, hence, learned Single Judge rightly dismissed the contempt petition. The appellant has failed to point out any illegality floating on record compelling us to interfere in the impugned order. The instant Intra Court Appeal is squarely devoid of legal justification, which is accordingly dismissed.

(Y.A.) Petition Dismissed

PLJ 2020 Lahore 201 (DB)

Present:Amin-ud-Din Khan and Ch. Muhammad Iqbal, JJ.

MUMTAZ HUSSAIN--Appellant

versus

SECRETARY, LITERACY & NON-FORMAL BASIC EDUCATION DEPARTMENT etc.--Respondents

I.C.A. No. 216147 of 2018, decided on 11.9.2019.

Law Reforms Ordinance, 1972--

----S. 3--Appointment on contract basis--Extension of contract period--Issuance of notices--Willful absence and misconduct--Termination of service--Filling of departmental representation--Filling of writ petition during pendency of representation--Disposed of with direction to decide representation--Representation was rejected--Writ petition--Dismissed--Challenge to--As per Clause 10 of contract, respondents department is well within authority to pass order for termination in case of Unauthorized Leave, Breach of Discipline and Misbehavior etc--Admittedly appellant was under obligation to file reply of aforementioned notices but he contumaciously avoided to join proceedings, which itself amounts to a misconduct on part of appellant--Even otherwise, admittedly, appellant is contract employee, his contract was expired and he challenged termination order which action of respondents come within terms of contract employment and it is well settled law that contract employees are debarred to agitate their grievance relating to contract employment through constitutional petition--Appeal was dismissed. [P. 203] A & B

2019 SCMR 648 ref.

Mr. Mahmood Ahmad Qazi, Advocate for Appellant.

Mr. Junaid Razzaq, AAG for State.

Date of hearing: 11.9.2019.

Order

Through this ICA, the appellant has challenged the vires of order dated 15.05.2018 whereby the learned Single Judge-in-Chambers dismissed the Writ Petition No. 211974/2018 filed by the appellant.

1. Brief facts of the case are that the appellant was appointed as Material Development Expert (Community Mobilization), Non-Formal Education Curriculum & Material Development Unit, Literacy & Non-Formal Basic Education Department Lahore on contract basis on 16.12.2015 for a period commencing from 16.12.2015 to 30.06.2016. The contract was lastly extended on 08.06.2017 w.e.f. 01.07.2017 to 30.06.2018 for one year. On 07.02.2018, the Secretary Literacy & Non-Formal Basic Education Department terminated the contract on the basis of willful absence from duty, misconduct, in competency and non-submission of reply to the notices. Against the said order, the appellant filed departmental representation before the Secretary Literacy & Non-Formal Basic Education Department and during the pendency of the said representation, the appellant filed Writ Petition No. 195150 of 2018 which was disposed of by this Court vide order dated 26.04.2018 with the direction to the Secretary to decide his representation. In compliance of the said order, the Secretary after hearing the appellant rejected the representation of the appellant vide order dated 04.05.2018. Against the termination order dated 07.02.2018 and order dated 04.05.2018 the appellant filed Writ Petition No. 211974 of 2018 which was dismissed by the learned Single Judge-in-Chambersvide order dated 15.05.2018. Hence, this appeal.

2. Learned counsel for the appellant submits that without notice and without affording hearing to the appellant, his contract employment was illegally terminated by the respondents department which material aspects have been escaped from the consideration of the learned Single Judge-in-Chambers while passing the impugned order, as such, impugned order may kindly be set aside and by allowing the instant appeal the termination order of the appellant may be recalled.

3. Learned law officer appearing on behalf of the respondents department contends that the appellant’s contract has already been expired and after notices to the appellant the termination order was passed by the competent authority, thereafter, while deciding the representation of the appellant, appellant was heard, as such, order was rightly passed which do not require any interference.

4. We have heard the learned counsels for both the parties at length and gone through the entire record with their able assistance.

6. Admittedly, the appellant was appointed on contract basis for a period commencing from 16.12.2015 to 30.06.2016 and his contract period was extended till 30.06.2018, whereafter no further extension was made in the contract and after notice, due to the appellant’s willful absence and misconduct, his contract was terminated. The respondents department filed concise statement alongwith the record of the notices (Annexure A, B, C and D) issued to the appellant seeking explanation qua willful absence and misconduct which notices were served to the appellant before passing the termination order but he willfully avoided to join the departmental proceedings. As per Clause 10 of the contract, the respondents department is well within authority to pass order for termination in case of Unauthorized Leave, Breach of Discipline and Misbehavior etc. Admittedly the appellant was under obligation to file reply of the aforementioned notices but he contumaciously avoided to join the proceedings, which itself amounts to a misconduct on the part of the appellant. Further, in compliance with the direction of this Court the competent authority/Secretary afforded hearing to the appellant and thereafter passed speaking order dated 04.05.2018, as such, the arguments of the learned counsel regarding non-hearing of the appellant is misconceived and is hereby repelled.

7. Even otherwise, admittedly, the appellant is contract employee, his contract was expired on 30.06.2018 and he challenged the termination order which action of the respondents come within the terms of the contract employment and it is well settled law that the contract employees are debarred to agitate their grievance relating to the contract employment through constitutional petition. Reliance is placed on the cases titled as Qazi Munir Ahmed vs. Rawalpindi Medical College and Allied Hospital through Principal & others (2019 SCMR 648), relevant portion whereof is reproduced as under:

“12. We have also noticed that the dispute between the parties related to contract employment. This Court has in various pronouncements settled the law that a contract employee is debarred from approaching the High Court in its constitutional jurisdiction. The only remedy available to a contract employee is to file a suit for damages alleging breach of contract or failure, to extend the contract. Reference in this behalf may be made to Federation of Pakistan v. Muhammad Azam Chattha (2013 SCMR 120), where it has been held that it is a cardinal principle of law that a contract employee cannot press for reinstatement to serve for the left over period and

can at the best claim damages to the extent of unexpired period of his service. Therefore, it was correctly held that the petitioner approached the wrong forum in the first place and the learned Single Judge had exceeded his jurisdiction by interfering in a purely contractual matter.”

1. In view of above, this Intra Court Appeal is hereby dismissed being devoid of any merit.

(Y.A.) Appeal Dismissed

PLJ 2020 Lahore 204 (DB)

Present: Amin-ud-Din Khan and Ch. Muhammad Iqbal, JJ.

MUHAMMAD HUSSAIN etc.--Petitioners

versus

FEDERAL LAND COMMISSION, ISLAMABAD etc.--Respondents

W.P. No. 5808 of 2012, decided on 12.9.2019.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--West Pakistan Land Reforms Regulations, 1959, S. 4(6)--Allotment of land being refugee from non-agreed area of India--Surrendering from allotment--Agreement to sell--Payment of all consideration amount--Filling of claim--Transfer of land without permission of collector--Acceptance of claim--Appeal--Accepted--Matter was remanded--Filling of petition before Chief Land Commissioner--Dismissed--Limitation--Filling of writ petition--Dismissed as withdrawn--Revision petition--Dismissed--Challenge to--Concurrent findings--It is settled law that party has to be vigilant with regard to its rights and any impairment or infringement whereof must be agitated within provided timeframe as law always helps vigilant and hardly shows any favour to indolent--It is mandatory duty of Court firstly to see whether suit/petition is filed within prescribed limitation or not--Petitioners filed this petition after lapse of more than 27 years against order as such, Chief Land Commissioner as well as Federal Land Commission rightly passed orders and no illegality has been committed--Counsel for petitioners has not been able to point out any illegality or material irregularity in impugned orders passed by Land Commission/revenue authorities and has also not identified any jurisdictional defect calling for interference by this Court--Revenue hierarchy had given concurrent findings of facts against petitioners and conclusions made by revenue hierarchy are based on cogent reasons, as such, same do not call for any interference by this Court--Petition was dismissed. [Pp. 207 & 208] A, B, C, D & E

PLD 1974 SC 139, 1987 SCLC 47 and PLJ 2014 Lahore 484 ref.

Mr. Zaka-ur-Rehman Awan, Advocate for Petitioners.

Mr. Junaid Razzaq,AAG for Respondents No. 1 & 2.

Date of hearing: 12.9.2019.

Judgment

Ch. Muhammad Iqbal, J.--Through this writ petition, the petitioners have challenged the vires of order dated 22.04.2006 passed by the Senior Member/Member (Revenue), Chief Land Commissioner, Punjab whereby ROR (LR) No. 36/2002 filed by the petitioner was dismissed being barred by limitation and order dated 12.12.2011 passed by the Federal Land Commission, Islamabad (Camp at Lahore) who dismissed ,the revision petition of the petitioners.

1. Brief facts of the case as contended by the learned counsel for the petitioners are that one Sh. Ahmad Abdullah a refugee from non-agreed area of India got the land measuring 5110 Kanals 17-Marlas allotted but he had surrendered the said allotted land under MLR-89 and opted to purchase the same under MLR-91. An agreement to sell was written with the predecessor-in-interest of the petitioners and Respondents No. 3 to 11 and the petitioners paid all the consideration amount and got possession of the land comprising Khata No. 17, Khatooni No. 228/285, 239, 230, 231, 232 and in Khata No. 1l Khatooni No. 91 to 96 in village Duloo Gurukey, Tehsil Chunian District Kasur. Sh. Ahmad Abdullah merely filed a claim under MLR-115 and full ownership rights were not yet conferred upon him but he without permission of the collector entered into, an agreement to sell with the petitioners and Respondents No. 3 to 11 and transferred the land to them but subsequently Deputy Land Commissioner had accepted the declaration of the said Sh. Ahmad Abdullah under Para 12(1) (a) and 12 (1) (b) of MLR-115 vide order dated 26.01.1974. The petitioners and Respondents No. 3 to 11 filed an appeal before the Land Commissioner, Punjab on 02.04.1974 against impugned order passed by the Deputy Land Commissioner which was accepted vide order dated 30.06.1974 and the case was remanded to the Collector for considering the retrospective regularization of the transaction of sale under Para 10 of MLR-91 and declaration filed by Sh. Ahmad Abdullah was declared infructuous. The petitioners and predecessor-in-interest of Respondents No. 3 to 11 being tenants were entitled to get the property transferred in their names by the Collector. Predecessor-in-interest of the Respondents No. 3 to 11 Malik Faqir Ali and Hotey Khan by practicing fraud and misrepresentation got the sale deed executed from the Collector Kasur on 16.07.1978 registered on 09.08.1978 in their names excluding the names of the petitioners whereas predecessor-in-interest-of the petitioners namely Allah Ditta, Sardar Muhammad and Fazal Karim were also a party before the Deputy Land Commissioner and Land Commissioner, Punjab. Being legal heirs of Allah Ditta, Sardar Muhammad and Fazal Karim petitioners are eligible for the purchase of the land, in this way, petitioners were deprived from their rights, as such, fraud was committed with them. The petitioners filed petition before the Chief Land Commissioner, Punjab Lahore under Para 4(6) of the West Pakistan Land Reforms Regulations, 1959 which was dismissed summarily on the sole ground of limitation vide order dated 22.04.2006. Against the above order the petitioners filed Writ Petition No. 11722/2006 which was subsequently dismissed as withdrawn on 26.02.2008. The petitioners filed revision petition which was also dismissed by the Federal Land Commissioner, Islamabad vide order dated 12.12.2011. Hence, this writ petition on the grounds that both orders are illegal passed in hasty manner and not sustainable in the eyes of law.

2. Learned law officer appearing on behalf of Respondents No. 1 & 2 contends that petitioners’ predecessor admittedly were party at the time of decision dated 30.06.1974 rendered by the Land Commissioner, Punjab and they were well aware about the litigation, as such, petition was rightly dismissed being barred by limitation under Section 4(6) of the West Pakistan Land Reforms Regulation, 1959, and no illegality has been committed, as such the instant petition deserves dismissal.

3. We have heard the arguments of learned counsels for the parties and gone through the record with their able assistance.

4. Admittedly, predecessor-in-interest of the petitioners namely Allah Ditta, Sardar Muhammad and Fazal Karim were party in the appeal before the Land Commissioner Lahore Division which was decided on 30.06.1974 and the petitioners were well aware about the litigation and this fact was also admitted in the writ petition as well. After lapse of more than 27 years the petitioners filed petition under Para-4(6) of the Land Reforms Regulations, 1959 (Martial law Regulation 64), read with the Scheme for disposal of Surrendered Land under Martial Law Regulation No. 89/91 of 1961 seeking modification of the sale-deed registered on 09.08.1978 executed by the then Collector Kasur, whereas the matter falls under the ambit of past and closed transactions which cannot conveniently be reopened by the lower adjudicating fora. Reliance is placed on Pakistan International Airlines Corporation vs. Aziz ur Rehman Chaudhary and another (2016 SCMR 14). It is settled law that party has to be vigilant with regard to its rights and any impairment or infringement whereof must be agitated within the provided timeframe as the law always helps the vigilant and hardly shows any favour to the indolent. As the Revenue Revision Petition of the petitioners was ostensibly time barred and by running of a considerable period of limitation certain tangible legal rights stood accrued in favour of the adverse party which are duly protected by the law and same cannot be frustrated by exercising uncalled for discretionary power until and unless convincing reasons have been explained for the said delay. Reliance can also be placed on the case titled as Messrs Blue Star Spinning Mills Ltd. vs. Collector of Sales Tax & others (2013 SCMR 587). Further under Section 3 of the Act ibid it is mandatory duty of the Court firstly to see whether the suit/petition is filed within the prescribed limitation or not. The law of limitation provides an element of certainty in the conduct of human affairs as held by the Hon’ble Supreme Court of Pakistan in a case titled as Atta Muhammad vs. Maula Bakhsh & others (2007 SCMR 1446). For ready reference, relevant paragraph is reproduced as under:

“9. We may add that public interest requires that there should be an end to litigation. The law of limitation provides an element of certainty in the conduct of human affair. Statutes of limitation and prescription are, thus, statutes of peace and repose. In order to avoid the difficulty and errors that necessarily result from lapse of time, the presumption of coincidence of fact and right is rightly , accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so, within that period; otherwise his rights if any, will be forfeited as a penalty for his neglect. In other words the law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts it requires that persons must come to Court and take recourse to legal remedies with due diligence”.

In another case titled as Ahmad Din vs. Muhammad Shafi & others (PLD 1971 SC 762), the Hon’ble Supreme Court of Pakistan held as under:

“The contention of the learned counsel for the appellant that the suit could not fail merely by reason of the fact that the consequential relief by way of possession had not been claimed is not altogether without substance. If this suit was otherwise maintainable and he was otherwise entitled to the relief it was open to the Courts to allow him to amend the plaint by adding a prayer for possession and paying the appropriate ad valorem Court-fees and then to grant him relief even though he had not specifically asked for it. But in the circumstances of this case since we have come to the conclusion that the civil Courts had no jurisdiction to entertain the suit and the suit was also barred by limitation, it is unnecessary to go into this question. This appeal must fail on that account and is. accordingly, dismissed but there will be no order as to costs.”

(emphasis supplied)

Admittedly, under Rule 11(2) of the Punjab Land Reforms Rules, 1972, the limitation for filing the appeal against the Land Commissioner order before the Senior Member/Chief Land Commission, Punjab is 20 days and under Rule 12 of the Rules ibid the limitation of review is also 20 days. The petitioners filed this petition after lapse of more than 27 years against order dated 30.06.1974, as such, Chief Land Commissioner as well as Federal Land Commission rightly passed orders and no illegality has been committed.

6. Learned counsel for the petitioners has not been able to point out any illegality or material irregularity in the impugned orders passed by the Land Commission/revenue authorities and has also not identified any jurisdictional defect calling for interference by this Court.

7. The revenue hierarchy had given concurrent findings of facts against the petitioners and the conclusions made by the revenue hierarchy are based on cogent reasons, as such, same do not call for any interference by this Court. Reliance is placed on the cases titled as Muhammad Husain Munir & others vs. Sikandar & others (PLD 1974 SC 139), Muhammad Sher & another vs. Mian Kamal Shah & 11 Others (1987 CLC 47) Muhammad Akram vs. Member Board of Revenue, etc. (PLJ 2014 Lahore 484) & Muhammad Akram vs. Member, Board of Revenue (Judicial-VII) & 8 others (2014 MLD 870).

1. As discussed above, this writ petition is dismissed being devoid of any merit.

(Y.A.) Petition Dismissed

PLJ 2020 Lahore 209[Multan Bench Multan]

Present:Jawad Hassan, J.

Dr.MAHAM MUNIR AWAN--Petitioner

versus

SECRETARY, SPECIALIZED HEALTH CARE & MEDICAL EDUCATION DEPARTMENT, GOVERNMENT OF PUNJAB, LAHORE and 2 others--Respondents

W.P. No. 2054 of 2019, decided on 14.10.2019.

Constitution of Pakistan, 1973--

----Arts. 199 & 212--Constitutional petition--Appointment as Assistant Professor radidogy--Request for posting at Nishter University Multan--Declined--Jurisdiction--Challenge to--Petitioner is a civil servant and basically, she agitated posting of Respondent No. 3, which falls within terms and conditions of a civil servant and for enforcement of same this Court cannot exercise its constitutional jurisdiction due to bar under Article 212 of Constitution--An employee has no vested right to be posted at a place of his/her own choice nor can he/she insist that he/she must be posted at one place or other--It is sole prerogative of Respondents/Competent Authority to transfer and post any employee and Courts usually refrains from interfering in postings and transfers particularly where there is no element of mala fide--Petitioner has failed to establish from record appended with petition, any element of mala fide--Petition was dismissed. [Pp. 210 & 211] A, B & C

1999 SCMR 2482, 1999 SCMR 1293, 2005 SCMR 442 and 2015 SCMR 253 ref.

Ch. Muhammad Ashraf Sandhu, Advocate for Petitioner.

MianAzhar Saleem Kamlana, Assistant Advocate-General on Court’s call.

Mr. Asghar Hayat Haraj, Advocate for Respondent No. 3/ Mst. Samreen Mushtaq.

Date of hearing: 14.10.2019.

Order

Through the instant petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”), the Petitioner has prayed as under:

“Under the above mentioned circumstances, it is most respectfully prayed that this writ Petition may kindly be accepted and in nature of “writ of mandamus” Respondents may kindly be directed to issue appointment letter to the Petitioner as Assistant Professor Radiology at Nishtar Medical University, Multan instead of the Respondent No. 3/Dr. Samreen Musthaq, in the interest of justice.

Any other relief, which this Hon ‘ble Court deems fit, may also be granted to the Petitioner.”

1. The Petitioner has asserted in the petition that upon the recommendation of Punjab Public Service Commission, she was appointed against the post of Assistant Professor Radiology (BS-18) on regular basis. She being the single appointee against said post, requested the Health Department for her posting at Nishtar Medical University, Multan because no regular selected appointee was working there. But the Respondent No. 3/Dr. Samreen Mushtaq has been promoted and posted against the said post, which is totally against the transfer/posting policy of the Department and discriminatory towards the Petitioner.

2. Learned Law Officer has vehemently contested the arguments and contended that the petition is liable to be dismissed on the ground that the Petitioner is a civil servant and Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”) specifically bars the jurisdiction of this Court to entertain the matter in hand as the same pertains to the terms and conditions of Petitioner’s service.

3. I have heard the arguments and perused the record.

5. Admittedly the Petitioner is a civil servant and basically, she agitated the posting of the Respondent No. 3, which falls within the terms and conditions of a civil servant and for enforcement of the same this Court cannot exercise its constitutional jurisdiction due to bar under Article 212 of the Constitution. The afore-noted bar has been sufficiently dilated upon by the Hon’ble Supreme Court of Pakistan in its various pronouncements and has held in unequivocal and clear terms that the bar is absolute. Reliance is placed on the judgments reported as “Ali Azhar Khan Baloch and others v. Province of Sindh and others” (2015 SCMR 456), “National Assembly Secretariat v. Manzoor Ahmed and another” (2015 SCMR 253).

6. Moreover, an employee has no vested right to be posted at a place of his/her own choice nor can he/she insist that he/she must be

posted at one place or the other. No Department can function if its employee insists for posting at a particular place or position, as long as one desires. In the matters relating to the posting and transfer of an employee, the apex Courts have held that the transfer and posting at a particular place is not a vested right of an employee rather the Competent Authority is the best judge of necessary features of service. It is the sole prerogative of the Respondents/Competent Authority to transfer and post any employee and the Courts usually refrains from interfering in postings and transfers particularly where there is no element of mala fide. The Petitioner has failed to establish from the record appended with the petition, any element of mala fide. Reliance in this regard is placed on the case titled Ehsan Elahi Cheema v. Secretary Health and 2 others (1999 SCMR 2482), Waseem Ali Tabish and 4 others v. Province of Punjab through Secretary-General, Administration and Information Department and 6 others (1999 SCMR 1293) & Muhammad Alam Jan v. Government of N.W.F.P. through Secretary, Home and Tribal Affairs, Peshawar and 3 others (2005 SCMR 442).

1. In view of above, the instant petition, being not maintainable, is hereby dismissed.

(Y.A.) Petition Dismissed

PLJ 2020 Lahore 211 [Multan Bench, Multan]

Present: Mujahid Mustaqeem Ahmed, J.

GHULAM HUSSAIN KHAN (deceased through his legal heirs) and others--Petitioners

versus

DEPUTY COMMISSIONER/DISTRICT COLLECTOR, MUZAFFARGARH and 3 others--Respondents

W.P. No. 3684 of 2019, decided on 28.5.2019.

Constitution of Pakistan, 1973--

----Art. 199--Inheritance mutation--Representation of petitioner--Implementation of lawful orders--Principles of natural justice--Opportunity of hearing--Direction to--Deputy Commissioner/ District Collector, Muzaffargarh (Respondent No. 1), who shall treat it as representation-of petitioners and ensure its decision and implementation of lawful orders, if still in field, at earliest, preferably within fifteen from date of receipt of order of this Court, in accordance with law/rules, principles of natural justice and equity by passing a speaking order, after affording petitioners and concerned an opportunity of fair hearing. [Pp. 212 & 213] A

Malik Zaffar Mahboob Langrial, Advocate for Petitioners.

Mian Azhar Saleem Kamlana, A.A.G. for Respondents.

Date of hearing: 28.5.2019.

Order

By filing instant writ petition, the petitioners have made following supplication:

“… This writ petition may very kindly be accepted and the Respondent No. 4/ADLR Tehsil Jatoi District Muzaffargarh, may very kindly be directed to implement the order dated 23.07.2015 passed by Member Judicial-I BOR Lahore, and also order of ADC, Muzaffargarh dated 28.11.2015 in the Revenue Record by entering the mutation in favour of predecessor of the petitioner’s Ghulam Hussian and further entered inheritance mutation in favour of petitioner’s, within a suitable time which this Honourable Court may kindly be fix, in the large interest of justice.”

1. During the course of verbal submissions, learned, counsel for petitioners submits that the petitioners will be satisfied if instant writ petition is sent to Respondent No. 1 to treat it as representation of petitioners and ensure its swift decision.

2. Heard.

3. In case “Mian Asghar Ali versus Government of Punjab through Secretary (Colonies) BOR, Lahore and others (2017 SCMR 118) it was held that High Court/Supreme Court can convert and treat one type of proceedings into another and may remit the lis to the Court/forum/authority of competent jurisdiction for decision of the lis on its own merits.

The request being genuine is acceded to and this writ petition is disposed of with the direction to the office to .send copy of this writ petition alongwith all its annexures, on the expenses of petitioners, to the Deputy Commissioner/District Collector, Muzaffargarh (Respondent No. 1), who shall treat it as representation-of petitioners and ensure its decision and implementation of lawful orders, if still in field, at the earliest, preferably within fifteen from the date of receipt

of order of this Court, in accordance with law/rules, principles of natural justice and equity by passing a speaking order, after affording the petitioners and all concerned an opportunity of fair hearing.

(M.M.R.) Petition Disposed of

PLJ 2020 Lahore 213 [Multan Bench, Multan]

Present: Muhammad Sajid Mehmood Sethi, J.

Mst. JAWAIRIA ABBAS--Petitioner

versus

BAHA-UD-DIN ZAKARIYA UNIVERSITY through Vice Chancellor/ Chairman, Selection Board/Chairman, Syndicate, Multan and others--Respondents

W.P. No. 1261 of 2019, heard on 28.2.2019.

Constitution of Pakistan, 1973--

----Arts. 25 & 199--Constitutional petition--P.H.D. scholarship--Recommendation for award of scholarship--Violation of equality—Discrimination--Challenge to--After interview, petitioner was recommended for award of Scholarship and House unanimously decided to approve the recommendations made by Selection Board in its meetings--Any discrimination in procedure while dealing with citizen shall offend Article 25 of Constitution, whereas, above-referred treatment meted out to petitioner is highly discriminatory in nature while jeopardizing rights of petitioner. As a whole, principle on which doctrine of equality is founded, is that persons in similar circumstances must be governed by same laws/rules/ regulations--Petition was disposed of. [Pp. 219, 220] A & B

2002 SCMR 82 and 2008 SCMR 1058 ref.

Mian Abbas Ahmad, Advocate and Rana Muhammad Iqbal Noon, Advocate for Petitioner (in connected W.P. No. 2162 of 2019).

M/s. Muhammad Ali Siddiqui and Fakhar Raza Ajmal Malana, Advocates along with Muhammad Mazhar Saeed, Director General (M&E) HEC, Naveed Hussain Shah, Director (M&E) HEC and Yasir Anwar, Deputy Director, Monitoring HEC for Respondents.

Date of hearing: 28.2.2019.

Judgment

This consolidated judgment shall dispose of instant writ petition along with following connected writ petition as common questions of law and effects involved in these cases:

W.P. No. 2162 of 2019 titled Sohail Ayaz Muhammad v. Baha-ud-Din Zakariya University through its Vice Chancellor Chairman, Selection Board/Chairman, Syndicate, Multan and others

1. Through instant petition, petitioner has sought direction from this Court for the respondent-university to issue notification with regard to the award of Ph.D. Scholarship on the topic of ‘Faculty Development’, awarded by the then Prime Minister of Pakistan, specifically for respondent-university, out of which certain scholarships were allocated to the Institute of Business Administration and unanimously approved by the Syndicate in its meeting dated 08.12.2018 and further taken note by this Court in ‘order dated 20.12.2018, passed in W.P. No. 10131 of 2016, filed by present petitioner, with the following prayer:

“It is, therefore, respectfully prayed that this petition may graciously be accepted and the writ may be issued to direct respondent-university to issue notification with respect to the award of Ph.D. Scholarship on the topic of Faculty Development awarded by the then Prime Minister Syed Yousaf Raza Gillani, specifically for B.Z. University, out of which certain scholarships were allocated to the Institute of Business Administration and approved by the Syndicate unanimously in its meeting dated 08.12.2018 and further taken note by this august Court in order dated 20.12.2018, in W.P. No. 10131/2016 titled as “Jawairia Abbas vs. B.Z.U. etc.” at the earliest and the inaction on behalf of the Registrar Baha-ud-Din Zakariya University in that behalf may be declared as illegal, and without lawful authority in not issuing the notification for award of scholarship of Rs. 10-Million since the date of Selection Board Meeting held on September, 2016 and further sanctioned by the Syndicate. It is also prayed that a notice may also be issued to the respondent/officials of the respondent-university as to why they shall not be proceeded with under Article 203 read with the provisions of Contempt of Court Ordinance, 2004 for not complying with the order dated 20.12.2018 and also the minutes of the Syndicate meeting held on 08.12.2018.”

Through connected petition, petitioner, namely Sohail Ayaz Muhammad has sought direction from this Court for Respondents 1 to 4 to issue award letters for Ph.D. Foreign Scholarship, with the following prayer:

“In the above mentioned circumstances, it is respectfully prayed that this Hon’ble Court may kindly be pleased to grace instant constitutional petition with acceptance and to declare the act of omission of the Respondents No. 1 to 4 issuing award letters for Ph.D. Foreign Scholarships to the petitioner against the law and facts, without jurisdiction, without lawful authority, unconstitutional, capricious, fanciful and based on mala fide as well as miscarriage of justice. The direction to the Respondents No. 1 to 4 may be issued to issue the award letter to the petitioner as early as possible within a stipulated period.”

1. Learned counsel for petitioner submits that despite unanimous approval and sanction by the Syndicate in its meeting dated 08.12.2018, there is inaction on the part of respondent-authorities to award Ph.D. Scholarship in favour of petitioner, which is absolutely unwarranted in law. He further submits that the only plea adopted by respondent-authorities is that respondent-Higher Education Commission of Pakistan, Islamabad (“HEC”) is not agreeing with the said approval/sanction. He adds that petitioner has been subjected to gross discrimination in the matter in violation of the equality clause contained in Article 25 of the Constitution of the Islamic; Republic of Pakistan, 1973 (“the Constitution”). In the end, he submits that petitioner is entitled to award of Ph.D. Scholarship.

2. Conversely, learned Legal Advisor for respondent-university contends that petitioner is already working as Lecturer in the Institute of Management Sciences (“IMS”) against a permanent post in BS-19 w.e.f. 27.04.2015. He further contends that though the then Prime Minister of Pakistan announced 100 Ph.D. Foreign Scholarships in various disciplines including Psychology, Business Administration and Commerce, however, after petitioner’s recommendation for award of scholarship by the Selection Board, Syndicate did not approve the same in said disciplines due to direction of respondent-HEC. He maintains that pursuant to order dated 01.11.2018, passed by learned Division Bench of this Court, the House unanimously approved the recommendations of Selection Board under C.W, Item No. 05 and awarded scholarships to present petitioner along with others and in this regard, respondent university has already written to HEC, however, decision of HEC is still awaited. In the end, he contends that without direction of HEC, respondent-university cannot issue the award letters to any one of the candidates.

Likewise, learned Legal Advisor for respondent-HEC submits that the scholarship awarded by the respondent-university through its Selection Board and Syndicate was questioned by the respondent-HEC on various grounds and it has been categorically maintained that there had been discrepancies found in such award of the scholarships. He further-contends that under the provisions of the Baha-ud-Din Zakariya University Act, 1975 (“the Act of 1975”) and the calendar thereto, the minutes of Syndicate could only be termed as final if there would be no observation by any member of the Syndicate. He adds that in the minutes of meeting held on 08.12.2018, it has categorically been stated that the scholarships are being awarded but due to certain observation of the HEC, same are subject to the final approval of HEC. In the end, he argues that no discrimination whatsoever is being caused to petitioner.

1. Arguments heard. Available record perused.

2. Perusal of record reveals that 6/2018 meeting of Syndicate was held on 08.12.2018, wherein the petitioner appeared through her father as Special Attorney. Her matter was placed before the Syndicate at Item No. 31 and the House considered her case. The relevant part of minutes is reproduced as under:

“The House further discussed other Court cases i.e. WP No. 173/2017 titled “Rabia Nayyab vs. BZU, etc.”, WP No. 3030/2017 titled “Ruqia Safdar Bajwa and another vs. BZU, etc.” and WP No. 10131/2016 titled “Mrs. Javaria Abbas vs. BZU Multan” relating to the under-discussion Scholarships and the Registrar apprised the House that Writ Petition No. 3030/2017 was transmitted to the Chancellor by the Hon’ble Court, Multan Bench, Multan vide order dated 02.05.2018 with the direction to decide the matter and the case has been fixed for hearing before the Chancellor on 10.12.2018.

The House heard the following parties or their authorized representatives who were called and presented in compliance with the order dated 01.11.2018 passed by the Division Bench of Lahore High Court, Multan Bench vide Letter No. 15495 dated 04.12.2018:-

| | | | | | --- | --- | --- | --- | | Sr. No. | Name of Parties/Representative | | Status of Scholarship | | 1. | Sidra Liaqat | Herself | Recommended for awardee of Scholarship in Psychology | | 2. | Javaria Ahmed | Herself | Recommended for awardee of Scholarship in Business Administration | | 3. | Huma Jamshed | Herself | | 4. | Muhammad Munir | Himself | | 5. | Sohail Ayaz Muhammad | Himself | | 6. | Jawaria Abbas | Mian Abbas Ahmed | | 7. | Ammara Akram | Mr. Saifullah | Recommended for awardee of Scholarship in Commerce | | 8. | Ruqia Safdar Bajwa | Ms. Irum Awan | Recommended for awardee of Scholarship in Psychology | | 9. | Adeel Akhtar | Dr. Shakil Akhtar | Recommended for awardee of Scholarship in Commerce | | 10. | Saifullah | Himself |

They themselves or through their representatives, presented their contentions before the House and they contended that they applied against the advertisement for award of scholarship and appeared before the Selection Board and after interview recommended for award of scholarships but still award letters are not issued to them due to want of approval of the Syndicate/Competent Authority. They requested to issue their award letters.

The House also noted that Ms. Rabia Nayyab/Petitioner who filed Writ Petition No. 173/2017 against the award of scholarship in the discipline of Psychology, not appeared before the House while she was called upon to appear before the Syndicatevide Letter No. 15495. dated 04.12.2018. Petitioner was also called on her cell No, but she did not attend the call which revealed that she had nothing to defend her case while on the other hand, scholarship awardees as recommended by the Selection Board and in some cases duly approved by the Syndicate are waiting for a long time for issuance of their award letter(s) to pursue their higher studies.

The House discqssed all aspects of the case right from the beginning to the end in detail and after deliberation, unanimously decided to approve the recommendations made by the Selection Board in its 05/2016 held on 28th & 29th June 2016 under item No. 02, 03, 13 & 14 as well as recommendations made by the Selection Board in its 06/2016 meeting held on 3rd & 4th September 2016 under C.W. item No. 05, and awarded scholarships to the following:-

| | | | | --- | --- | --- | | Sr. No. | Name of Candidates | Discipline | | 1. | Ms. Farast Kanwal | Psychology | | 2. | Ms. Ruqia Safdar Bajwa | Psychology | | 3. | Ms. Sidra Liaqat | Psychology | | 4. | Mr. Adeel Akhtar | Business Administration | | 5. | Ms. Javeria Ahmad | Business Administration | | 6. | Ms. Huma Jamshed | Business Administration | | 7. | Mr. Saif Ullah | Commerce | | 8. | Ms. Ammara Akram | Commerce | | 9. | Ms. Javeria Abbas | Business Administration | | 10. | Mr. Sohail Ayyaz Muhammad | Business Administration | | 11. | Mr. Muhammad Munir | Business Administration | | 12. | Ms. Bushra Baig | Business Administration |

The House directed the Registrar office to answer the queries/ objections of Higher Education Commission regarding some of the scholarship that were raised in Performance Review Meeting held on 13/10/2016 in HEC. Further the House requested the HEC to respond within 15 days so that the scholars may proceed and further lapse in time may be saved.”

7. It transpires from the above that after interview, petitioner was recommended for award of Scholarship and the House unanimously decided to approve the recommendations made by Selection Board in its meeting held on 28th & 29th June, 2016 as well as recommendations made by the Selection Board in its meeting held on 3rd & 4th September, 2016 under C.W. Item No. 05 and awarded scholarship to the afore-referred candidates.

1. Thereafter, respondent-university placed minutes before learned Division Bench of this Court on 20.12.2018 and learned Division Bench passed the following order:

“Copy of minutes of meeting held on 08.12.2018 by virtue of which, approval has been given to award scholarship to the petitioner, have been submitted.

1. In view of above, grievance of the petitioner has been redressed, therefore, this writ petition is disposed of.”

2. At this stage, learned counsel for respondent-HEC submits that HEC has recorded following discrepancies/observations in the selection process of the petitioners, which are intimated to the respondent-university vide Letter No. 2(873)/HEC/M&E/2009 dated 27.02.2019.

| | | | | --- | --- | --- | | Sr. No. | Name | Comments | | 3. | Ms. Javeria Abbas (Business Administration) | · The candidate was not recommended by the Selection Board in its meeting held on June 28-29, 2016. · The Selection Board recommended the same candidate in its meeting held on Sept 3-4, 2016 without any evaluation/Interview | | 4. | Mr. Sohail Ayyaz, Business Administration | · The candidate was not recommended by the Selection Board in its meeting held on June 28-29, 2016. · The Selection Board recommended the same candidate in its meeting held on Sept 3-4, 2016 without any evaluation/Interview |

1. There appears to be no legal justification in not extending the same relief to petitioner .as has been given to the other candidates. So far as the argument of learned counsel for respondent-university that respondent-HEC has to approve funds and can review the decisions, therefore, recommendations were not finalized, is concerned, suffice it to say that equal treatment is to be given to the similarly placed persons. The case of petitioner appears to be at par with those who have already been granted the same relief.

11. Needless to observe here that any discrimination in the procedure while dealing with the citizen shall offend Article 25 of Constitution, whereas, the above-referred treatment meted out to petitioner is highly discriminatory in nature while jeopardizing the rights of the petitioner. As a whole, the principle on which the doctrine of equality is founded, is that persons in similar circumstances must be governed by the same laws/rules/regulations. It has been held by the Hon’ble Supreme Court that other similarly placed employees could not be discriminated without any cogent reason, by violating the provisions of Article 25 of the Constitution and it was duty of respondents to protect fundamental rights of petitioner enshrined in Article 9 of the constitution. Reliance is placed upon Engineer Naraindas and another v. Federation of Pakistan and others (2002 SCMR 82), Tehsil Municipal Administration, Rahimyar Khan and others v. Hanif Masih and others (2008 SCMR 1058) and Ejaz Akbar Kasi and others v. Ministry of Information and Broadcasting and others (PLD 2011 Supreme Court 22).

1. In view of the above, instant petition, along with connected petition, is disposed of with the direction to respondent-university to conclude the matter with the approval of its statutory body, within a period of thirty days and if the case of petitioners is at par with those to whom scholarship has been awarded, same treatment should be granted to the petitioners as well by the respondent-HEC.

(Y.A.) Petition Disposed of

PLJ 2020 Lahore 221 (DB)

Present:Sayyed Mazahar Ali Akbar Naqvi and Farooq Haider, JJ.

Mst. MUMTAZ YAQOOB etc.--Appellants

versus

ADDITIONAL SESSIONS JUDGE etc.--Respondents

ICA No. 636 & 637 of 2014 and ICA No. 29 of 2015, decided on 25.10.2018.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3--Criminal Procedure Code, (V of 1898), Ss. 22-A & B--Application for registration of case--Disposed of with direction to SHO to record statement o f appellants and proceed further--Filling of writ petition--Accepted--Challenge to--Perusal of record shows that allegations of demolishing houses, harassment to women folk and taking away debris from there have been leveled in applications under Sections 22-A & B Cr.P.C. by appellants against Respondent No. 3 and others but as per police report submitted before learned Ex-officio Justice of Peace, contents of said applications were reported to be false and incorrect--It is categorically mentioned by police in their comments that there is previous enmity between parties on murder of persons from side of Respondent No--3 and in this regard said respondent has registered a criminal case under Sections 302, 148, 149 PPC--It is further reported that household articles of appellant Mumtaz Yaqoob have been kept in house of her close relative, who is brother-in-law of Yaqoob, husband of said appellant--It is also reported by police that during spot inspection, houses of appellants were found to be demolished but it was not conclusively opined that same were demolished by Respondent No. 3 and others--Hence, in this back ground, learned Single Judge in Chamber has rightly held that while passing orders learned Ex. Officio Justice of peace has overlooked above said facts and circumstances of case in its true perspective and as such, said orders were rightly set aside through impugned order--We find no illegality or perversity in impugned order, which is based on cogent reasons and needs no interference by us--Appeals were dismissed. [Pp. 222 & 223] A & B

Mr. Muhammad Ahsan Bhoon, Advocate for Appellants.

Ch. Akbar Ali Kung, Additional Advocate General for Respondents.

Mr. Munir Hussain Bhatti, Advocate for Respondent No. 3.

Date of hearing: 25.10.2018.

Order

This order shall dispose of Intra Court Appeals No. 636/2014, 637/2014 and 29/2015 involving common questions of law and facts.

1. Above noted three Intra Court Appeals under Section 3 of The Law Reforms Ordinance, 1972 have been filed by Mst.Mumtaz Yaqoob, Mst. Gulshan Bibi and Muhammad Anwar (hereinafter referred as appellants) against consolidated order dated 22.05.2014 passed by the learned Single Judge-in-Chamber, whereby Writ Petition No. 6123/2014, 6080/2014 and 6081/2014, filed by Muhammad Tahir (hereinafter referred as Respondent No. 3) were accepted and the orders dated 26.2.2014, passed on the applications filed under Section 22-A & B Cr.P.C. were set aside.

2. Necessary facts leading to the filing of instant appeals are that the appellants moved three applications under Sections 22-A & 22-B Cr.P.C. before the learned Ex-Officio Justice of the Peace seeking a direction to the SHO concerned for registration of F.I.R against Respondent No. 3 and others, who vide orders dated 26.2.2014 disposed of the same directing the SHO concerned to record the statements of the appellants and proceed further in accordance with provisions of Section 154, Cr.P.C. Feeling aggrieved by the said order, Respondent No. 3 filed Writ Petitions No. 6123/2014, 6080/2014 and 6081/2014, which have been accepted by the learned Single Judge-in-Chamber vide consolidated order dated 22.5.2014, impugned herein, hence the above mentioned Intra-Court Appeals.

3. It has been contended by the learned counsel for the appellants that while passing the impugned order, the learned Single Judge in Chamber has not appreciated the true facts and circumstances of the case, which resulted into grave miscarriage of justice, as such, the impugned order is liable to be set aside.

4. On the other hand, learned Additional Advocate General assisted by learned counsel for Respondent No. 3 has supported the impugned order by contending that while passing the impugned order, the learned Single Judge in Chamber has applied his independent judicial mind to the facts and circumstances of the case, as such, he has rightly passed the impugned order, which is not called for any interference, therefore, the above said Intra Court Appeals may be dismissed.

5. Arguments heard and available record perused.

7. Perusal of the record shows that allegations of demolishing the houses, harassment to the women folk and taking away the debris from there have been leveled in the applications under Sections 22-A &

B Cr.P.C. by the appellants against Respondent No. 3 and others but as per police report submitted before the learned Ex-officio Justice of Peace, the contents of the said applications were reported to be false and incorrect. It is categorically mentioned by the police in their comments that there is previous enmity between the parties on the murder of three persons from the side of Respondent No. 3 and in this regard the said respondent has registered a criminal case bearing F.I.R No. 17/2013 under Sections 302, 148, 149 PPC against Sikandar, Muhammad Qamar alias Qamri, Muhammad Qayyum and Muhammad Usman, sons of appellant Mumtaz Yaqoob, Tariq husband of appellant Gulshan Bibi and Nsrullah son of appellant Muhammad Anwar, who are proclaimed offenders in this case.; It is further reported that the household articles of appellant Mumtaz Yaqoob have been kept in the house of her close relative, who is brother-in-law of Yaqoob, husband of said appellant. It is also reported by the police that during spot inspection, the houses of the appellants were found to be demolished but it was not conclusively opined that the same were demolished by Respondent No. 3 and others. Hence, in this back ground, the learned Single Judge in Chamber has rightly held that while passing the orders dated 26.2.2014, learned Ex. Officio Justice of Justice has overlooked the above said facts and circumstances of the case in its true perspective and as such, said orders were rightly set aside through the impugned order. We find no illegality or perversity in the impugned order, which is based on cogent reasons and needs no interference by us.

1. For the reasons discussed above, the above mentioned Intra Court appeals being devoid of any merit are dismissed.

(M.M.R.) Appeal Dismissed

PLJ 2020 Lahore 223

Present:Shahid Waheed, J.

SHAHID SARWAR--Petitioner

versus

GOVERNMENT OF PAKISTAN HOME DEPARTMENT MINISTRY OF INTERIOR, ISLAMABAD through SECRETARY and 7 others--Respondents

W.P. No. 8426 of 2020, decided on 13.2.2020.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Deletion of name from exist control list--Existance of any legal right--Aggrieved person--Maintainability--I am afraid this foundation does not exist here--Documents appended with this petition suggest that respondents have placed name of Zahid Sarwar, on ECL and other related files/orders--It means that a legal right, if any, exists in Zahid Sarwar and petitioner or his authorization could file this petition--Since petitioner has not placed on record any document conferring/ constituting petitioner as attorney of Zahid Sarwar, petitioner cannot be treated as aggrieved person to maintain this petition--I asked petitioner’s counsel as to whether prior to filing of this petition any request was made before respondents for redress of grievance voiced in this petition--He replied in negative--In these circumstances prayer made in this petition cannot be allowed--Petition was dismissed. [P. 225] A & B

PLD 1963 SC 203 and PLD 1961 SC 178 ref.

Mr. Muhammad Asif Mehmood, Advocate.

Date of hearing: 13.2.2020.

Order

The petitioner has brought this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 seeking a direction to the respondents to delete the name of his brother, Zahid Sarwar, from the Exist Control List and other related files/standing orders.

1. The prayer made in this constitutional petition cannot be granted for two reasons: Firstly, the instant petition has been filed under clause (1)(a)(i) of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 seeking order in the nature of writ of mandamus. In the case of Masudul Hassan v Khadim Hussain and another (PLD 1963 SC 203) the principles applicable to issue of a writ of mandamus have been stated as follows:

(i) “an applicant for an order of mandamus must show that there resides in him a legal right to the performance of a legal duty by the party against whom the mandamus is sought;

(ii) in order that a mandamus may issue to compel something to be done under a statute, it must be shown that the statute imposed a legal duty;

(iii) it is only in respect of a legal right that mandamus will issue;

(iv) the legal right to enforce the performance of a duty must be in the applicant himself. The Court, will therefore only enforce the performance of statutory duty by public bodies

on the application of a person who can show that he has himself a legal right to insist on such performance”.

In the light of above stated principle it is to be seen as to whether a legal right in respect of the prayer made in this petition exists in the present petitioner seeking a direction to the respondents to perform duty qua that right. I am afraid this foundation does not exist here. The documents appended with this petition suggest that the respondents have placed the name of Zahid Sarwar, on the ECL and other related files/orders. It means that a legal right, if any, exists in Zahid Sarwar and the petitioner or his authorization could file this petition. Since the petitioner has not placed on record any document conferring/ constituting the petitioner as attorney of Zahid Sarwar, the petitioner cannot be treated as aggrieved person to maintain this petition.

3. The other ground upon which this petition must fail is that the Hon’ble Supreme Court in the case of District Magistrate, Lahore etc and Syed Raza Kazim (PLD 1961 SC 178) has held that the accepted conditions for grant of a writ of mandamus are that it must be preceded by a demand of justice and the refusal thereof and that there should be no other equally expeditious, in expensive and efficacious remedy available to the person seeking this extraordinary remedy. Being aware of this principle, I asked petitioner’s counsel as to whether prior to filing of this petition any request was made before the respondents for redress of grievance voiced in this petition. He replied in the negative. In these circumstances prayer made in this petition cannot be allowed.

1. Dismissed.

(M.M.R.) Petition dismissed

PLJ 2020 Lahore 225

Present:Mrs. Ayesha A. Malik, J.

SHEHZAD ALI SHAH--Petitioner

versus

SPECIAL JUDGE RENT, LAHORE etc.--Respondents

W.P. No. 24651 of 2019, heard on 22.1.2020.

Constitution of Pakistan, 1973--

----Art. 199--Civil Procedure Code, (V of 1908), Ss. 12(2) & 151--Rented Premises Act, 2009, Ss. 21(8), 26 & 34--Ejectment petition--Ex-parte decree--Execution petition--Applicability of limitation act--Limitation--Filling of application for setting aside ex-parte proceedings--Accepted--Maintainability--Jurisdiction--It is clear that provisions of CPC shall not apply to proceedings before Rent Tribunal, D.J or A.D.J--Order sheet shows that ex-parte proceedings were initiated and case was fixed for ex- parte evidence--In terms of order exparte evidence was recorded and case was fixed for arguments--No one appeared on behalf of respondent, hence ex- parte judgment was passed by Respondent No. 1--Ex-parte judgment finds that respondent was summoned by using different modes of service including publication in newspaper, but he did not appear--In terms of contents of application, no case of fraud or misrepresentation was made out rather a simple prayer for restoration on account of non-appearance was made out before Court--Notwithstanding same, if an application was made under Section 12(2) of CPC, it could have been treated as an application under Section 21(8) of Rent Act, which means it had to be filed within thirty days of dismissal order--Therefore not only was application under Section 12(2) CPC barred under law in terms of Section 34 of Rent Act but also barred by time under Section 21(8) of Rent Act--Therefore application under Section 12(2) CPC was not maintainable and Special Judge (Rent), Lahore did not have jurisdiction to condone delay of 10 months--Petition was allowed.

[Pp. 227, 228 & 229] A, B, C & D

2001 SCMR 286 ref.

Mr. Umer Afzal Chaudhry, Advocate for Petitioner.

Sheikh Muhammad Suleman Qureshi, Advocate for Respondents No. 3 and 4.

Date of hearing: 22.1.2020.

Judgment

Through this petition, the petitioner has impugned order dated 11.3.2019 passed by Respondent No. 1, Special Judge (Rent), Lahore.

1. The basic contention of the learned counsel for the petitioner is that the petitioner filed an ejectment petition against Respondent No. 2 before Special Judge (Rent), Lahore. Respondent No. 2 did not appear before the Court, hence the eviction petition was decided ex-parte on 11.4.2016. The petitioner then filed an execution petition in order to have the respondents evicted. However Respondents No. 3 and 4 filed an application under Section 12(2) read with Section 151 Civil Procedure Code, 1908 (“CPC”) on 11.2.2017 which application was accepted on the same date that is 11.2.2017. Learned counsel for the petitioner argued that provision of Section 12(2) of the CPC is not applicable in the proceedings under the Punjab Rented Premises Act, 2009 (“Rent Act”) as it has been specifically barred under Section 34 of the Rent Act. Furthermore he stated that the Limitation Act, 1908 (“Limitation Act”) is also not applicable and the delay in filing the application under Section 12(2) CPC could have also not been condoned as the Limitation Act is not applicable to the proceedings under Rent Act.

2. On behalf of Respondents No. 3 and 4, learned counsel argued that the case was considered on its merits and that in terms of the order impugned before this Court, the application for condonation of delay was accepted in the interest of justice as law favours decision on merit rather than technicalities. Therefore he stated that the arguments of the petitioner’s Counsel are based on technical grounds, hence should not be accepted. Consequently prays for dismissal of the petition.

3. The basic issue before the Court is whether the application filed under Section 12(2) read with Section 151 CPC for setting aside ex- parte order was maintainable under the Rent Act. Section 34 of the Rent Act reads as follows:

Save as otherwise expressly provided under this Act, the provisions of the Qanun-e-Shahadat Order, 1984 (P.O. No. 10 of 1984) and the Code of Civil Procedure, 1908 (Act V of 1908) shall not apply to the proceedings under this Act before a Rent Tribunal, District Judge or Additional District Judge.

In terms of the said section, it is clear that the provisions of the CPC shall not apply to proceedings before the Rent Tribunal, District Judge or Additional District Judge. Section 26 of the Rent Act provides that the Rent Tribunal can exercise the powers of a Civil Court in order to enforce the attendance of a person, compel the production of evidence, inspect a premises or issue commission for examination of a witness or local inspection. Therefore when Section 26 is read with Section 34, the provisions of the CPC are only applicable to the extent specified in Section 26 and no other provision of the CPC is applicable in rent proceedings under the Rent Act. The august Supreme Court of Pakistan in this regard has already held in Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others (2007 SCMR 818) that the Rent Tribunal should evolve its own procedure for disposal of ejectment proceedings and follow the enabling provisions of the CPC and the principles contained therein. It has also held that equitable principles of the CPC can be applied, however the provisions of the CPC themselves were not applicable. Reliance is placed on Saeed Pervaiz v. Syed Masood Hassan (2008 SCMR 568).

5. In the instant case, an application under Section 12(2) CPC was filed against an ex-parte judgment dated 11.4.2016. In this regard, it is noted that Section 21 of the Rent Act provides for appearance of parties and consequences of non-appearance. In terms of Section 21(8) of the Rent Act, if an application has been dismissed in default of the appearance of an applicant and an application for restoration of the same is made within thirty days of the dismissal order, the Rent Tribunal may restore the application on such terms as it may deem appropriate. The Rent Act, therefore specifically provides for the mode and manner in which a dismissal in default of appearance can be restored, that too within a period of thirty days. In this case, the eviction petition under Section 15 of the Rent Act was filed on 25.2.2016. The order sheet shows that ex-parte proceedings were initiated vide order dated 22.3.2016 and the case was fixed for ex- parte evidence on 26.3.2016. In terms of order dated 26.3.2016 ex- parte evidence was recorded and the case was fixed on 30.3.2016 for arguments and on 30.3.2016 the case was adjourned to 11.4.2016. On 11.4.2016 no one appeared on behalf of the respondent, hence ex- parte judgment was passed by Respondent No. 1. The ex-parte judgment dated 11.4.2016 finds that the respondent was summoned by using different modes of service including publication in the newspaper, but he did not appear. Hence the judgment and decree dated 11.4.2016 was passed. The Respondents moved an application under Section 12(2) CPC on 11.2.2017 for setting aside ex-parte judgment dated 11.4.2016. The Court considered the application and allowed it primarily in the interest of justice.

1. For ease of reference Section 12(2) of the CPC is reproduced:

Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.

In my opinion, this section is not applicable on account of the bar contained in Section 34 of the Rent Act. It is further noted that in terms of the contents of the application, no case of fraud or misrepresentation was made out rather a simple prayer for restoration on account of non-appearance was made out before the Court. Notwithstanding the same, if an application was made under Section 12(2) of the CPC, it could have been treated as an application under Section 21(8) of the Rent Act, which means it had to be filed within thirty days of the dismissal order dated 11.4.2016. Therefore not only was the application under Section 12(2) CPC barred under the law in terms of Section 34 of the Rent Act but also barred by time under Section 21(8) of the Rent Act.

7. In this regard, Section 29(2) of the Limitation Act is relevant and reproduced under:

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 provisions 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.

On the basis of the aforementioned Section, it is clear that the ability of a Court to condone the delay has been excluded under special or local laws and is authorized specifically where the law of limitation has been made applicable in the said statute. In cases where the law of limitation has not been made applicable under the special law, then the Court cannot condone the delay and the Court has to ensure that the application is made within the specified period given in the statute. Reliance is placed on Allah Dino v. Muhammad Shah and others (2001 SCMR 286) wherein it has been held that where the law under which proceedings had been initiated itself prescribed a period of limitation, then the benefit of Section 5 of the Limitation Act, 1908 could not be availed unless the same had been made applicable as per Section 29(2) of the Act. The operation of Section 5 of the Limitation Act is expressly excluded by Section 29(2) of the Limitation Act. Therefore the application under Section 12(2) CPC was not maintainable and the Special Judge (Rent), Lahore did not have jurisdiction to condone the delay of 10 months.

1. Under the circumstances, the instant Petition is allowed and impugned order dated 11.3.2019 passed by Respondent No. 1 is set aside.

(Y.A.) Petition allowed

PLJ 2020 Lahore 230 [Multan Bench Multan]

Present: Jawad Hassan, J.

KHALID--Petitioner

versus

MEPCO, etc.--Respondents

W.P. No. 2770 of 2020, decided on 21.2.2020.

Constitution of Pakistan, 1973--

----Art. 199--Electricity bill--Representation--Electric Power company issued bill of month without considering that amount of arrears has already been paid--Copy of writ petition be remitted to respondent who will treat same as a representation and decide issue and correct bill under National electric power regulator authority (import of power) regulations, 2017--In meanwhile, No coercive measures shall be adopted against petitioner for recovery of alleged arrears. [Pp. 230 & 231] A & C

Constitution of Pakistan, 1973--

----Art. 199--Maintainability of writ petition--Court can take cognizance of matter where misuse or abuse of authority by public functionaries arises. [P. 230] B

2002 CLC 59 ref.

Mr. Muhammad Qadir Asif Toor, Advocate for Petitioner.

Date of hearing: 21.2.2020.

Order

Learned counsel for the Petitioner submits that the electricity bill for the month of January, 2020 (“the Bill”) has been issued to the Petitioner by the Respondent No. l, Multan Electric Power Company (“the MEPCO”), without considering the fact that the amount of arrears has already been paid by the Petitioner but the MEPCO has again added the same in the Bill without any justification.

2. On the question of maintainability of this petition, learned counsel submits that this Court can take cognizance of the matter where the misuse or abuse of authority by the public functionaries arises. In this regard, he has placed reliance on the judgment passed by a learned Division Bench of this Court in the case of Muhammad Zia versus Ch. Nazir Muhammad, Advocate and 4 others (2002 CLC 59). He, however, submits that the Petitioner would be satisfied if the

matter be transmitted to the Respondent No. 3/Sub-Divisional Officer (E), MEPCO, Sub-Division Kabirwala, District Khanewal with a direction to decide the same in accordance with law, within a short span of time.

3. The request of the Petitioner, being reasonable, is allowed. Let a copy of this writ petition alongwith all the annexures be remitted to the Respondent No. 3 who will treat the same as a representation of the Petitioner and decide the issue in hand after providing proper hearing to the Petitioner, strictly in accordance with law, through a speaking order, expeditiously within a period of one week from the receipt of certified copy of this order. If claim of the Petitioner is found genuine then the Respondent/Authority concerned will make necessary amendment/correction in the Bill under the National Electric Power Regulatory Authority (Import of Power) Regulations, 2017 or any other law applicable, and also issue revised bill, which the Petitioner will deposit within next two days. In the meanwhile, no coercive measures shall be adopted against the petitioner for recovery of the alleged arrears, till decision of his representation.

Disposed of.

(K.Q.B.) Petition disposed of

PLJ 2020 Lahore 231

Present:Muhammad Sajid Mehmood Sethi, J.

Syed FAROOQ AHMAD SHAH--Petitioner

versus

GOVERNMENT OF THE PUNJAB through Home Secretary Punjab, Lahore and others--Respondents

W.P. No. 8419 of 2019, heard on 4.2.2020.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Shadat of constable during duty--Family of deceased was awarded compensation--Amendment in police rules--Stopage of monthly salary--Doctrine of locus poenientiea--Retrospective effect--Question of--Whether petitioner is entitled to receive full pay and allowance of his Shaheed father till age of his superannuation--Direction to--Policy making is exclusive domain of executive but retrospective application of a policy curtailing/ withdrawing certain vested rights accrued in favour of an aggrieved party is not plausible--Benefit in question was accrued in favour of family of Shaheed in 1994 and petitioner is in continuous receipt of said benefit till May, 2017, thus, vested right accrued in favour of petitioner cannot be taken away through notification--Effect of a notification taking away certain rights would start from date of its issuance--Even otherwise, notification issued in exercise of executive powers could not be operated retrospectively--Law is well-settled that once a right is created by extending benefit after complying with all codal formalities, same cannot be destroyed or withdrawn as legal bar would come into play under doctrine of locus poenitentiae--It is clear that pay is altogether different and distinct subject from pension and it cannot be treated as pension for purpose of its disbursement to family of a Shaheed--Petition was allowed. [Pp. 236 & 237] A, B, C & D

2017 YLR 1571, 2018 SCMR 1792, 2017 PLC (CS) 1085, 2018 PLC (CS) 669, 2019 PLC (CS) 893 ref.

Mirza Qamar-uz-Zaman, Advocate for Petitioner.

Mr. Ameer Abbas Ali Khan, Assistant Advocate General for Respondents.

Hafiz Tariq Naseem, Advocate for Amicus Curie.

Date of hearing: 4.12.2019.

Judgment

Brief facts of the case are that petitioner’s father namely Syed Safdar Ali Shah joined the Police Department as Constable on 22.10.1990. On 21.08.1994, when petitioner’s father was performing duties under the control of Respondent No. 5/Capital City Police Officer, Lahore, at Police Station Lytton Road, Lahore, during encounter with dacoits, petitioner’s father embraced Shahadat and case FIR No. 215 of 1994 was registered at Police Station Lytton Road, Lahore. Thereafter, family of the deceased was awarded compensation as per rules and monthly salary was being received by petitioner’s grandfather till October, 2013. After the death of petitioner’s grandfather, salary was disbursed in favour of petitioner being legal heir of the deceased. vide notification dated 30.08.2008, the Provincial Police Officer, Punjab, awarded full pay and allowances to the families of Police Officials who embrace Shahadat till the date of superannuation with increments and with full benefits of the revised rates of all pay & allowances, special/adhoc relief etc., as allowed by the Government from time to time with effect from 04.11.1992. The said benefits were also adopted/ordered to be givenvide notification dated 10.04.2017, issued by Provincial Police Officer, Lahore, however, subject to relevant pension rules. Ultimately, salary of petitioner’s Shaheed father was stopped from June, 2017, on the pretext that petitioner was not entitled to receive the same in view of the Punjab Civil Service Pension Rules. Petitioner time and again approached the respondents, through various applications, with the request that he is entitled to receive full pay and allowances of his Shaheed father till 31.12.2028 but his genuine request was not acceded to. Hence, instant petition.

1. Learned counsel for petitioner submits that petitioner is entitled to receive full pay and allowances of his Shaheed father till the date of superannuation, with increments and other benefits at revised rates of pay and allowances, special/adhoc relief etc. as granted by the Government from time to time but inaction on part of respondents is unwarranted.

2. Learned Law Officer, on the other hand, submitted that disbursement of full pay & allowances to legal heirs of Shaheed is also in accordance with the Punjab Civil Services Pension Rules, 1963 and petitioner being above 24-years of age, is neither entitled to receive full pay & allowance nor pensionary benefits of his Shaheed father.

3. Learned Amicus Curie submits that petitioner’s father was martyred during service, thus, his family was entitled to full pay and allowance as per notification 04.12.1991 under the head of “Continuation of Payment of Salary to the Martyr in Police Department” till the martyr’s superannuation. He adds that salary and pension are two different things under the provisions of the Punjab Civil Servants Act, 1974, thus, petitioner is entitled for the pay/allowances of the martyr till his age of superannuation and pension to martyr’s family after his age of superannuation. He further submits that notification dated 10.04.2017 does not bar the petitioner to receive salary of the martyr till the age of superannuation and cannot be applied adverse to petitioner’s rights and even otherwise it cannot be given retrospective effect.

4. Arguments heard. Available record perused.

5. The question for determination before this Court is whether petitioner is entitled to receive full pay and allowances of his Shaheed father till the age of his superannuation i.e. 31.12.2028. Perusal of record shows that the Home Department, Government of the Punjab, vide letter dated 06.06.1992, granted approval for payment of last pay & allowances drawn by Shaheed police official for the remaining period of their service up to the age of superannuation, the relevant portion whereof is as under:-

“Subject: CONTINUATION OF PAYMENT OF SALARY ETC. TO THE MARTYRS IN THE POLICE DEPARTMENT.

Reference your letter No. 14123/F-II dated 4.12.1991 on the subject cited above.

1. The Chief Minister was pleased to approve payment of last pay & allowances drawn by the Shaheed Police officials for the remaining period of their service (upto the age of superannuation) subject to the following conditions.

i. Pension will not be attracted in the matter as the bereaved families would qualify for pension only after the remaining period of service upto the age of superannuation has expired.

ii. The Financial liability to be caused by this decision will be met out of existing budget and no addl. Funds will be demanded as savings in the head pay and allowances are quite substantial every year.

iii. It shall not have any retrospective effect as proposed by the IGP.”

Later on, the Home Department, vide notification dated 30.08.2008, made certain amendments in the Punjab Police Department (Award of Compensation to Police Officers/Officials Killed/Incapacitated in encounters/disturbances etc.) Rules, 1989, read with Notification No. HP-II/4-22/97, dated 11 May, 2004 and Para 1(I) and 1(II) of Home Department’s notification No. HP-II/10-45/91 dated October 13, 1993 and Para-2 of letter No. HP-I/10-45/91, dated 06.06.1992. The relevant portion of the amendments pertaining to case in hand is reproduced hereunder:

“3. Para 1(I) and 1(II) of Home Department’s notification No. HP-II/10-45/91 dated October 13, 1993 and Para-2 of letter No. HP-I/10-45/91, dated 06.06.1992 is hereby amended and shall read as follows:

“Full pay and allowances to the families of Police Officials who embrace “Shahadat”, till the date of superannuation, with Increments and with full benefits of the revised rates of all pay & allowances, special/adhoc relief etc., as allowed by the Government from time to time.

“On retirement of the Shaheed, his/her spouse shall be entitled to full pension as per rules governing superannuating officials.”

The benefits stated in Para 3-ante shall have retrospective effect i.e. w.e.f. November 04, 1992.”

Afterwards, the Home Department, vide notification dated 30.05.2015, adopted the above amendments in the following manner:-

“3. Para 1(I) and 1(II) of Home Department’s notification No. HP-II/10-45/91 dated October 13, 1993 and Para-2 of letter No. HP-I/10-45/91, dated 06.06.1992 is hereby amended and shall read as follows:

“Full pay and allowances to the families of Police Officials who embrace “Shahadat”, till the date of superannuation, with Increments and with full benefits of the revised rates of all pay & allowances, special/adhoc relief etc., as allowed by the Government from time to time.

“On retirement of the Shaheed, his/her spouse shall be entitled to full pension as per rules governing superannuating officials.”

The benefits stated in Para 3-ante shall have retrospective effect i.e. w.e.f. June 06, 1992.”

Again, the Home Department, vide notification dated 10.04.2017, further amended Rule 12 of the Police (Award of Compensation) Rules, 1989 by adopting Para 3 of notification dated 30.05.2015, supra, however, with a further note that the disbursement of full pay and allowances to the legal heirs of Shaheed will be in accordance with the relevant Pension Rules, Punjab, the relevant portion whereof is reproduced hereunder:

“2. FULL PAY AND ALLOWANCES

Para 3 of Notification No. Welfare No. 7641/W-III, dated 30.05.2015, reads as “Full pay and allowances to the families of Police Officials who embrace “Shahadat”, till the date of superannuation, with Increments and with full benefits of the revised rates of all pay & allowances, special/adhoc relief etc., as allowed by the Government from time to time.

On retirement of the Shaheed, his/her spouse shall be entitled to full pension as per rules governing superannuating officials.

The benefits stated in Para 3-ante shall have retrospective effect i.e. w.e.f. June 06, 1992.” Shall remain intact.

Note

The disbursement of full pay and allowances to the legal heirs of Shaheed will be in accordance with the relevant Pension Rules, Punjab.”

1. It reflects from above history of the notifications that payment of last drawn pay and allowances of Shaheed police official was ordered to be given to the family for the first time vide letter dated 04.12.1991. However, said benefit was later on adopted, with certain stipulations/conditions, through notifications dated 06.06.1992, 30.08.2008 and 30.05.2015. Finally, vide impugned notification dated 10.04.2017, said benefit was kept intact, subject to the applicable pension rules.

8. Though, policy making is the exclusive domain of the executive but retrospective application of a policy curtailing/ withdrawing certain vested rights accrued in favour of an aggrieved party is not plausible. The benefit in question was accrued in favour of family of the Shaheed in 1994 and petitioner is in continuous receipt of said benefit till May, 2017, thus, vested right accrued in favour of petitioner cannot be taken away through the notification dated 10.04.2017.

9. Needless to say that effect of a notification taking away certain rights would start from the date of its issuance. Even otherwise, notification issued in exercise of executive powers could not be operated retrospectively. Only beneficial notification can operate retrospectively and notification impairing an existing right would operate prospectively. Reference is made to Jawaria Maqsood v. Joint Admission Committee for Medical Colleges through Chairman and 3 others (2017 YLR 1571), Al-Noor Sugar Mills Limited and another v. Federation of Pakistan and others (2018 SCMR 1792), Malik Muhammad Hashim Awan and another v. Chief Secretary Government of Punjab, Lahore and 3 others [2017 PLC (C.S.) 1085], Province of Punjab through Secretary to the Government v. Dr. Muhammad Zafar Iqbal and 10 others [2018 PLC (C.S.) 152] and Kanwal Rasheed v. Accountant General, Punjab and others [2019 PLC (C.S.) 783].

10. Law is well-settled that once a right is created by extending benefit after complying with all codal formalities, the same cannot be destroyed or withdrawn as legal bar would come into play under the doctrine of locus poenitentiae. Reliance is placed upon Federation of Pakistan through Secretary Capital Administration and Development Division, Islamabad and others v. Nusrat Tahir and others [2018 PLC (CS) 669] and Muhammad Saeed and others v. Secretary Finance and others [2019 PLC (CS) 893].

1. Sections 16 & 18 of the Punjab Civil Servants Act, 1974, deal with the “Pay” and “Pension”, respectively, which are reproduced hereunder for ready reference:

16. Pay.--A civil servant appointed to a post shall be entitled, in accordance with the rules, to the pay sanctioned for such post:

Provided that, when the appointment is made on a [current charge or acting charge basis in the manner prescribed] or by way of additional charge, his pay shall be fixed in the prescribed manner:

Provided further that where a civil servant has been dismissed or removed from service or reduced in rank, he shall, in the event of the order of dismissal, removal from service or reduction in rank being set aside, be entitled to such arrears of pay as the authority setting aside the order may determine.

18. Pension and gratuity.--(1) On retirement from service, a civil servant shall be entitled to receive such pension or gratuity as may be prescribed.

(2) In the event of death of a civil servant, whether before or after retirement, his family shall be entitled to receive such pension, or gratuity, or both, as may be prescribed.

It is clear that pay is altogether different and distinct subject from pension and it cannot be treated as pension for the purpose of its disbursement to family of a Shaheed.

1. In view of the above, instant petition is allowed with direction to the respondents to disburse full pay and allowances to the petitioner till the date of superannuation of his Shaheed father, with increments and with full benefits of the revised rates of all pay & allowances, special/adhoc relief etc., as allowed by the Government from time to time along with the arrears.

(Y.A.) Petition Allowed

PLJ 2020 Lahore 238 (DB) [Multan Bench Multan]

Present: Abid Aziz Sheikh, J.

FIDA HUSSAIN--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, MULTAN etc.--Respondents

W.P. No. 8170 of 2011, decided on 20.11.2019.

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

----O. I, R. 10--Impleaded as necessary party--Petitioner filed application under Order I, Rule 10, CPC to be impleaded as party--Trial Court allowed application while revisional Court set aside the order--Petitioner shows himself the legal heir of previous owner who had sold out the property--Petitioner could not be impleaded as party to the suit on the basis of being legal heir of said owner, who had no title to the property--Petition was dismissed.

[Pp. 238 & 239] A & B

Mr. Shabbir Ahmad Khokhar, Advocate for Petitioner.

Mr. Hakeem Aamer Bakhsh Awan, Advocate and Mr. Jamil Ahmad Chohan, Advocate for Respondents.

Date of hearing: 20.11.2019.

Order

This constitutional petition has been filed against the order dated 13.04.2011 passed by learned Addl. District Judge Multan whereby the order passed by the learned trial Court dated 17.04.2010 was set aside and petitioner’s application under Order I, Rule 10, CPC was dismissed.

2. Relevant facts are that in a suit for declaration titled “Abdul Qayyum vs. Hameeda Bibi” filed by Respondent No. 2 against Respondent No. 3, the petitioner filed application under Order I, Rule 10, CPC to be impleaded as party. The said application was allowed by learned trial Court on 17.04.2010, however, learned revisional Court Set aside the order and dismissed the application through impugned order dated 13.04.2011, hence this constitutional petition.

1. Learned counsel for the petitioner submits that petitioner (Fida Hussain) is the legal heir of Gul Muhammad who was owner of the property in question, therefore, petitioner is entitled to be impleaded as party in the suit. Learned counsel for the respondent on the other hand submits that said Gul Muhammad transferred the

propertyvide Mutation No. 1492 dated 31.07.1962, therefore, petitioner has no right to be impleaded as party in the suit.

4. Arguments heard. The available record shows that the suit for declaration filed by Respondent No. 2 against Respondent No. 3 is in respect of land measuring 12-Kanal-10-Marla in Khasra No. 1982 and 1988, land measuring 12-Kanal 06-Marla in Khasra No. 1989 and 08-Marla in Khasra No. 1983. The petitioner’s claim is that he is legal heir of Gul Muhammad who is owner of the suit property in view of Mutations No. 1109 to 1113 dated 16.08.1961. However the record shows that said Gul Muhammad transferred the said property through Mutation No. 1492 dated 31.07.1962 and in view of Mutation No. 1493, the said Gul Muhammad had become “no owner”. Once Gul Muhammad had already transferred the property, the petitioner could not be impleaded as party to the suit on the basis of being legal heir of Gul Muhammad, who had no title to the property. The learned counsel for the petitioner could not show any document from the available record, whereby Gul Muhammad or petitioner has any existing claim on the suit property.

1. In view of above, the learned revisional Court has rightly set aside the order passed by the learned trial Court and dismissed the application under Order I, Rule 10, CPC. For reasons recorded above, this petition being merit less is dismissed.

(K.Q.B.) Petition dismissed

PLJ 2020 Lahore 239[Rawalpindi Bench Rawalpindi]

Present:Shams Mehmood Mirza, J.

SONERI BANK LIMITED--Petitioner

versus

PROVINCE OF PUNJAB and others--Respondents

W.P. No. 3100 of 2018, heard on 9.3.2020.

Punjab Local Government Act, 2019 (XIII of 2019)--

----S. 56(1)--Constitution of Pakistan, 1973, Art. 199--Parks and Horticulture Authority Act, (XLVII of 2012), Ss. 2(o), 12(1), 12(8) & 21(4)--Constitutional petition--Issuance of notices--Advertisement fee--Outdoor advertisement--Challenge to--In so far as display of name of Banks outside business premises is concerned, there is not much dispute between parties that Banks can do so without payment of advertisement tax/fee--There does not appear to be any sanction in Cantonments Act, 1924 (the Cantonment Act) or Rules framed thereunder permitting charging of advertisement tax/fee from Banks--It is settled law that fiscal statutes prescribing levy of fee, tax, cess etc are to be strictly construed and that imposition of any such charge by a Government Agency is impermissible without specific legislative authority--Now as far outdoor advertisement in a “public park, green belt or greet area” is concerned, Authority can collect fee as same are under its control by terms of PHA Act and thus some type of service is being provided by Authority--The same cannot, however, be said for private buildings over which Authority has no control and any installation of outdoor advertisement therein or thereon would not involve element of providing service of any kind on its part--It is settled law that an authority can only charge and levy fee as compensation for corresponding service performed or rendered--If object and purpose of fee is simply to generate revenue for authority and amount of fee has no relation to service or value thereof, it will amount to a tax--A statute which imposes a tax has to necessarily provide event of taxation and also rate thereof--Both of these necessary constituents are missing from PHA Act--Authority which does not provide any service to Banks/petitioners cannot levy, charge and recover fee from them in respect of outdoor advertisement that is installed and affixed on premises of their branches or other offices--This aspect of matter would also be applicable to cases pertaining to Cantonment Board--Petitions was allowed. [P. 244, 245, 247, 248] A, B, C, D & E

Punjab Local Government Act, 2019 (XIII of 2019)--

----S. 56(1)--Levy Tax through notification in Official Gazette--In absence of such a Notification, Local Government cannot levy and charge tax on advertisement from Banks/petitioners--Even otherwise, signboards required to be installed by Banks under terms of Companies Act, 2017 and Policy of State Bank of Pakistan are exempt from advertisement tax--Punjab Local Government Act, 2017 being a provincial law must yield to and cannot override provisions of a federal statute. [P. 248] F

2017 PTD 1803, 2012 CLC 1124, 2014 SCMR 1630 and 2011 PTD 2643 ref.

Mr. Rizwan Manzoor, Advocate for Petitioner (in this petition as well as in W.P. No. 2509 of 2019, 281 of 2020, 1981 of 2019, 2977 of 2017, 2978 of 2017, 3428 of 2017, 414 of 2018, 455 of 2018, 3099 of 2018 and 3798 of 2019).

Mr. Abad-ur-Rehman, Advocate for Petitioner (in W.P. No. 1727 of 2019).

M/s. Wajahat Ali Mian, Hassan Abdullah Khan Niazi Advocates for Petitioners.

Mr. Muhammad Siddique Awan, Advocate for Petitioner (in W.P. No. 3798 of 2019).

Barrister Umer Aslam, Advocate for Petitioner (in W.P. No. 61/2018 and 1805/2019).

Mr. M. Kamal Hassan, Advocate for Petitioner (in W.P. No. 2243/2016 and 2245/2017).

Ch. Muhammad Arshad, Advocate for Petitioner (in W.P. No. 2718/2016).

Mr. Faiza Ahmed, Advocate vice learned counsel for Petitioner.

Mr. Khalid Waheed, Advocate for Petitioners (in W.P. Nos. 287, 242 & 246 of 2020).

Mr. Atif Waheed, Advocate for Petitioners (in W.P. Nos. 241, 243 & 244 & 245 of 2020).

Mirza Saqib Siddeeq, Advocate for Petitioner (in W.P. No. 196 of 2020).

Mr. Imran-ul-Haq & Ch. Naeem-ul-Haq, Advocates for Petitioners (in W.P. Nos. 159, 160, 197, 200, 213, 219, 295, 296, 292, 294, 293 & 332 of 2020).

Mr. Basit Iqbal, Advocate for Petitioners (in W.P. Nos. 372, 373 & 374 of 2020).

Ms. Ghazala Nazeer Qureshi, Advocate for Petitioner (in W.P. Nos. 226 & 236 of 2020).

Mr. S. Muhammad Jawad, Advocate appearing on behalf of learned counsel for Petitioner in 328 of 2020.

Mr. Muhammad Nasir Khan, Advocate for Petitioner (in W.P. Nos. 162, 163, 164 & 165 of 2020).

Mr. Mukhtar Ahmad Chaudhry, Advocate for Respondents No. 2 and 3 (in W.P. No. 2509/2019, 1981/2019, for Respondents No. 5 to 7 in W.P. No. 2443/2016, for Respondents No. 2 and 3 in W.P. No. 61/2018, for Respondent No. 3 in W.P. No. 414 of 2018 and 455 of 2018).

Mr. Muhammad Asad Chaudhry, Advocate for Respondent No. 2 (in W.P. No. 3798/2019).

Mr. Tariq Mahmood Khan, Advocate for Respondent No. 2 (in W.P. No. 806/2018).

Rana Zahid Ali, Advocate for Respondent No. 8 (in W.P. No. 2080/2016).

Syed Qamar Hussain Sabzwari, Advocate for Respondents (in W.P. No. 3372/2017).

Ch. Shamas Tabraiz, Assistant Advocate General.

Dates of hearing: 18.2.2020, 4.3.2020 & 9.3.2020.

Judgment

This writ petition and the connected writ petitions (mentioned in Schedule A hereto) have been filed by the Banks and other companies for brining under challenge the advertisement tax/fee levied by Parks and Horticulture Authority (the Authority), the Cantonment Board, Chaklala and the Local Government.

1. The issue relates to the boards installed by the Banks on their premises/branches displaying their names in relation to which notices have been served on them by the respondent authorities for payment of advertisement tax/fee. A number of writ petitions were earlier filed which were decided through judgment dated 20.04.2015 rendered in writ petition No. 2166 of 2011. Habib Bank Limited filed Civil Appeal No. 796 of 2015 whereas other Banks filed intra Court appeals against the said judgment. Civil Appeal No. 796 of 2015 was disposed of on 07.10.2015 by the Hon’ble Supreme Court by remitting the same to this Court for treating it as an intra Court appeal. All the intra Court appeals were decided by a learned Division Bench of this Court by relying upon the following observation made in order dated 07.10.2015 passed in Civil Appeal No. 796 of 2015:

Learned counsel when confronted with the leave granting order, on instructions states that the respondents would not charge any advertisement charges on the board which is affixed upon the branch for the purposes of identifying the location of the branch, however, if any publicity of its product is made by the appellant in the cantonment area the advertisement charges can be validly applied.

1. According to the learned counsels for the petitioners, the matter has not come to an end despite the conceding statement made before the Hon’ble Supreme Court as noted above. It is stated that the respondent authorities are continuously sending notices to the petitioners seeking payment of advertisement tax/fee. Learned counsels submit that the display of name of the Banks on their premises is a statutory requirement which does not amount to publicity or advertisement. The demand of the respondent authorities for advertisement charges, it is claimed, has no statutory underpinning. The learned counsels also pressed into service the principle of quid pro quo to submit that the respondent authorities do not provide any service to the petitioners and thus cannot charge advertisement fee.

2. Learned counsel for the Authority, while referring to Sections 2(o), 12(8) and 21(4) of the Parks and Horticulture Authority Act, 2012 (the PHA Act), contended that PHA has the necessary authority to charge fee from the petitioners. It is, however, submitted that Government of Punjab has issued Notification dated 25.06.2018 whereby amendment was made in Regulation 7 of PHA Rawalpindi Outdoor Advertisement Regulations, 2017 to the effect that Banks are exempt from the payment of shop sign charges for boards measuring 8 Square feet. It is accordingly stated that advertisement fee would only be levied on any signboards installed by the Banks which exceed the permissible measurement prescribed by the Regulations.

3. Learned counsels for the Cantonment Board placed reliance on Section 282(23) of the Cantonments Act, 1924 (the Cantonments Act) and Notification dated 05.07.2018 issued by the Ministry of Defence whereby Bye-laws were framed for regulating the pasting of bills and advertisements in Wah Cantonment.

4. Learned counsels for the respondent authorities submitted that the Bank’s display not only their names on boards but have also installed boards regarding their products and services which amounts to advertisement on which levy of advertisement tax/fee is lawful.

5. Arguments heard and record perused.

6. Section 22(a) of the Companies Act, 2017 reads as follows:

7. Publication of name by a company.--Every company shall:

(a) display in a conspicuous position, in letters easily legible in English or Urdu characters its name and incorporation number outside the registered office and every office or the place in which its business is carried on:

Similarly, the State Bank of Pakistan through BPRD Circle No. 207 dated 12.10.2007 issued the Branch Licensing Policy, paragraph No. 51 whereof reads as under:

1. Every licensed place of business of banks/DFIs shall carry a name which should be prominently display outside the place of business.

Paragraph 8.3 of the said Policy mandates as under:

Display of Name:

Every place of business of licensed institutions shall carry a name which should be prominently displayed outside the place of business with the name of licensed institutions on Signboar/Signage. Further, Signboard of conventional banking branches having Islamic banking windows shall contain words “Islamic Banking Windows” with logo covering a minimum l/4th portion of the board. The branch shall also display a prominent notice on entrance stating “Islamic banking services also available” to clearly indicate the nature of branch to customers.

It is settled law that circulars of State Bank of Pakistan have the status of law (see Government of Pakistan and others v. Messrs Hashwani Hotel Limited PLD 1990 SC 68). The Banks are thus bound to comply with the above provisions.

9. The afore-mentioned provisions demonstrate in no uncertain terms the obligation of the Banks to prominently display their name in a conspicuous place of business, their head offices, branches etc. It is also apparent that the Cantonment Board recognized this right of the Banks before the Hon’ble Supreme Court in Civil Appeal No. 796 of 2015. It is thus clear that in so far as the display of name of the Banks outside the business premises is concerned, there is not much dispute between the parties that the Banks can do so without payment of advertisement tax/fee.

1. The next question requiring determination is whether the tax/fee levied by the respondent authorities has any statutory backing.

Cantonment Board

11. There does not appear to be any sanction in the Cantonments Act, 1924 (the Cantonment Act) or the Rules framed thereunder permitting the charging of advertisement tax/fee from the Banks. A number of judgments have already dealt with this issue. A learned Division bench of the Sindh High Court in the case of Continental Biscuits Limited v. Federation of Pakistan through Secretary Defence, Ministry of Defence etc. 2017 PTD 1803 adjudicated upon the issue of levy of advertisement fee by the Cantonment Board, Hyderabad. It is significant to note that it was conceded before the Court by the Cantonment Board that the levy was in the nature of fee and not tax. The learned Division bench after examination of Sections 60 to 63 of the Cantonments Act came to the conclusion that the Board retained the power of general taxation subject to certain pre-conditions contained therein but had no power reserved under the Act for levy of advertisement fee. It was accordingly held that in the absence of any power to levy fee under the Cantonment Act, it could not frame any bye-law to impose the same. It was further held by the learned Division Bench that the Board was also not providing any service to the petitioner and thus could not claim fee in lieu thereof. The Court also found from the reading of Section 286B of the Cantonment Act that the Board had no power to delegate its powers to a private contractor. The Cantonment Board specifically pressed into service Section 282 (23) of the Cantonments Act which was dealt with in the judgment by holding as follows:

Moreover, Section 282(23) of the Cantonments Act, 1924 only empowers the Board to frame by-laws to regulate the items mentioned in the relevant statutory provision/enabling enactment and does not empower them to levy a fee.

The afore-mentioned observations reflect the correct position of law. It is settled law that fiscal statutes prescribing levy of fee, tax, cess etc are to be strictly construed and that imposition of any such charge by a Government Agency is impermissible without specific legislative authority.

Similarly, in the case of Exide Pakistan Limited v. Cantonment Board Clifton and others 2012 CLC 1124, another learned Division bench of the Sindh High Court ruled against the levy of “Shop Board Fee” with reference to Section 200 of the Cantonments Act which provision only authorized the Board to levy “Stallages, rents and fees” subject to the qualifications contained therein including the prior approval and sanction of the competent authority.

The Hon’ble Supreme Court in the case of Hyderabad Cantonment Board v. Raj Kumar and others 2015 SCMR 1385 was looking at the levy of Parking fee by the Board. It was held with reference to Section 200 of the Cantonment Act that Board had no authority to levy any fee which is not contemplated by the said provision.

A learned Bench of this Court in the case of Messrs Coca-Cola Beverages v. Cantonment Board Chaklala, Rawalpindi etc. 2011 MLD 1987 was once again dealing with the issue of levy of fee/charges on the signboards installed on the front of Shops/offices for advertisement of commercial activities. It was held in the judgment that such demand for such a levy could not be made when the Board did not provide any corresponding service to the petitioner.

1. The ratio of the afore-mentioned judgments clearly bring out the fact the Cantonment Board has no authority to levy fee in relation to the boards installed by the petitioners at their offices/branches.

Parks and Horticulture Authority

1. Learned counsel submitted that the case of the Authority is distinguishable from the other authorities in as much as there are direct provisions contained in the PHA Act allowing the Authority to charge advertisement fee.

2. Section 2(o) of the Act reads as under:

“Outdoor advertisement” means a streamer, board, poster, banner, or any other thing placed, painted, pasted or installed on a public or private building or property so that it is visible from a public place and which is intended to inform the reader of availability of a service, product or outlet or otherwise promote a person or a message;

Similarly, Section 12 of the Act in so far as it is relevant is reproduced hereunder:

1. Installation of billboards, sky signs and outdoor advertisements.--(1) If any person intends to install a billboard, sky sign or outdoor advertisement in any manner on private or public property or public park, green belt or green area, he shall make an application in the prescribed manner to the Authority.

(2) ........................................................................................

(3) The Authority shall not grant permission if the installation of the billboard, sky sign or outdoor advertisement affects the rights of road users to safe and secure usage or view of the residents or provision of light and air, or the view or sanctity of a historical monument.

(4) The permission for installation of billboard, sky sign or outdoor advertisement shall include such safety measures as may be determined by the Authority or as may be prescribed, and shall not, in any case, exceed such period as the Authority may determine or as may be prescribed.

(5) ........................................................................................

(6) ........................................................................................

(7) ........................................................................................

(8) The Authority may charge such fees for the grant of permission for installation of a billboard, sky sign or outdoor advertisement as the Authority may approve.

(9) ........................................................................................

1. According to the Authority, the definition of “outdoor advertisement” in the Act takes into account the kind of publicity that the Banks indulge in by displaying information about the availability of ATM machines and other services. The Banks, on the other hand, object to the construction placed on the definition of outdoor advertisement by PHA. It is stated that the expression “private building or property” contained in Section 2(o) of the Act refers to private properties of third parties and is not intended for the personal properties of the Banks.

16. Section 12(8) of the PHA Act is the charging provision. A bare reading thereof reflects that it authorizes the Authority to collect “fee” for the grant of permission for installation of a billboard, sky sign or outdoor advertisement. Section 12(1) stipulates that a person intending to install an outdoor advertisement on a private or public property or public park, green belt or green area shall’ make an application in the prescribed manner to the Authority. Now as far the outdoor advertisement in a “public park, green belt or green area” is concerned, the Authority can collect fee as the same are under its control by the terms of the PHA Act and thus some type of service is being provided by the Authority. The same cannot, however, be said for private buildings over which the Authority has no control and any installation of outdoor advertisement therein or thereon would not involve the element of providing service of any kind on its part. It is settled law that an authority can only charge and levy fee as compensation for corresponding service performed or rendered. If the object and purpose of the fee is simply to generate revenue for the authority and the amount of fee has no relation to the service or value thereof, it will amount to a tax. A statute which imposes a tax has to necessarily provide the event of taxation and also the rate thereof. Both of these necessary constituents are missing from the PHA Act. In the case of Federation of Pakistan through Secretary M/o Petroleum and Natural Resources and another v. Durrani Ceramics etc. 2014 SCMR 1630, the Hon’ble Supreme Court differentiated between tax and fee by making the following observations:

Whereas ‘tax’ is a common burden for raising revenue and upon collection becomes part of public revenue of the State, ‘fee’ is exacted for a specific purpose and for rendering service or providing privilege to particular individuals or a class or a community or a specific area. However, the benefit so accrued may not be measureable in exactitude. So long as the levy is to the advantage of the payers, consequential benefit to the community at large would not render the levy a ‘tax’.

Similarly, this Court in the case of East Pakistan Chrome Tannery (Pvt.) Limited v. Federation of Pakistan etc 2011 PTD 2643 while taking into account a plethora of judgments concluded that fee is collected for a specific beneficial purpose for the advantage of a particular class or sector or group of individuals who have paid or contributed towards the Fee. In determining whether a particular levy is fee the essential purpose of levy must be kept in mind which ought to be to render specific services to a specified area. It was held that there must be a relationship between the levy of fee and services rendered.

17. In view of the settled position of law, the Authority which does not provide any service to the Banks/petitioners cannot levy, charge and recover fee from them in respect of the outdoor advertisement that is installed and affixed on the premises of their branches or other offices. This aspect of the matter would also be applicable to the cases pertaining to the Cantonment Board.

Local Government:

1. Learned counsel representing the Local Government referred to Section 156 (1) of the Punjab Local Government Act, 2019, which reads as under:

2. Authority of a local government to levy taxes etc.- (1) A local government may, through a notification published in the official gazette, levy all or any of the taxes, fees, rates, tolls, rent and other charges given in the Tenth Schedule.

He submitted that clause (m) of the Tenth Schedule specifically caters for Tax on advertisement and billboards.

19. It is evident from the text of Section 156(1) of the Punjab Local Government Act, 2019 that the local government can only levy tax through a notification published in the Official Gazette. The learned counsel representing the local government, however, was not in a position to state with absolute certainty that any Notification for levy of tax on advertisement and billboards was issued and published in that Official Gazette. In the absence of such a Notification, the Local Government cannot levy and charge tax on advertisement from the Banks/petitioners. Even otherwise, the signboards required to be installed by the Banks under the terms of Companies Act, 2017 and

the Policy of State Bank of Pakistan are exempt from advertisement tax. The Punjab Local Government Act, 2017 being a provincial law must yield to and cannot override the provisions of a federal statute.

1. In the result, this writ petition and the connected writ petitions are allowed and it is declared that:

(a) The Banks are entitled to install any signboard/signage outside their premises in terms of Companies Act, 2017 and the Branch Licensing Policy issued by State Bank of Pakistan through BPRD Circle No. 207 dated 12.10.2007 without being liable to pay any advertisement fee to the respondent authorities;

(b) the Cantonment Board has no authority under the Cantonments Act, 1925 to charge and levy tax or fee in relation to advertisement from the petitioners;

(c) the Parks and Horticulture Authority his no authority to charge and levy advertisement fee from the petitioners on account of outdoor advertisement; and

(d) In the absence of any Notification under Section 156(1) of the Punjab Local Government Act, 2019, the Local Government has no authority to charge and levy Tax on advertisement and billboards;

All the notices issued by the respondent authorities which are impugned in this writ petition and connected writ petitions are set aside being without lawful authority and of no legal effect.

(Y.A.) Petitions allowed

PLJ 2020 Lahore 249

Present:Tariq Saleem Sheikh, J.

M. NAZIR INAYATULLAH TRANSPORT COMPANY--Petitioner

versus

STATE and others--Respondents

W.P. No. 8600 of 2020, heard on 20.3.2020.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Motor Vehicles Ordinance, (XIX of 1965), S. 95--Rash driving--Seizing of bus--Registration of FIR--Denial to return bus to owner by police--Maintainability--Availability of efficacious remedy--Question of adequacy is not a rule of law barring or limiting jurisdiction of High Court--Interpretation of law for which these proceedings are most appropriate--An application under Section 516-A, Cr.P.C. suggested by Additional Advocate General is neither an alternate nor adequate nor efficacious remedy--Therefore, I hold this petition maintainable--While enacting Section 95 legislature recognized importance of inspection of vehicle involved in accident but at same time desired that Motor Vehicle Inspector should complete his proceedings expeditiously and thereafter handed it over to owner--It considered that forty-eight hours are sufficient for this exercise--Police claim that they took Bus No. LRC-3155 into custody on 10.2.2020 while Petitioner alleges that it was on 6.2.2020--However, fact remains that they are still keeping it which is much beyond prescribed period--If inspection by Motor Vehicle Examiner was required, they ought to have got it done and returned bus to Petitioner after 48 hours--Since this has not been done, its current detention is without lawful authority and is declared as such--It is accordingly ordered that bus shall be returned to Petitioner forthwith--Additional Advocate General submitted that Petitioner has made alterations in bus for which proceedings are liable to be initiated against it--Petitioner has denied allegation--This issue involves factual inquiry which cannot be undertaken by this Court while exercising constitutional jurisdiction--Petition was disposed of.

[Pp. 251, 253, 256 & 259] B, C, D, E & F

Punjab Motor Vehicles Ordinance, 1965 (XIX of 1965)--

----S. 95--Inspection of vehicle--When any accident occurs in which a motor vehicle is involved only a person duly authorized by Government can inspect it and if he removes it to some other place he must return it to owner without unnecessary delay which should not in any case exceed 48 hours. [P. 251] A

Mr. Arshad Nazir Mirza, Advocate for Petitioner.

Mr. Zaman Khan Vardag, Additional Advocate General for State.

Mr. Akhlaq Sulehri, Deputy Prosecutor General Assisted by Rao Muhammad Atif Khan, Deputy District Public Prosecutor for Respondent.

Mr. Khalid Masood Sandhu, Advocate for Respondent No. 5.

Date of hearing: 20.3.2020

Judgment

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner challenges the detention of Bus No. LRC-3155 by Respondents No. 3 & 4 and seeks its release.

1. Brief facts of the case are that the Petitioner is a transporter and owns Bus No. LRC-3155 which plies from Lahore to Darman via Zafarwal. Allegedly, on 2.2.2020 its driver Muzammil Hussain while driving it rashly and negligently rammed into the car of Respondent No. 5 within the remit of Police Station Laisser Kalan. On 10.2.2020 Respondent No. 5 got FIR No. 31/2020 registered under Sections 279, 427 & 337-G, PPC against Muzammil Hussain and the same day the police seized the above-mentioned bus. The Petitioner alleges that Respondents No. 3 & 4 took the bus into custody on 6.2.2020 prior to the registration of FIR and on 10.2.2020 prepared a Recovery Memo. to regularize the seizure. The Petitioner states that it has approached Respondents No. 3 & 4 time and again for return of its vehicle but they have refused. Hence, this petition.

3. The learned counsel for the Petitioner contended that the accident took place due to the negligence of Respondent No. 5 and not because of rash driving of Muzammil Hussain. Even if the contents of the FIR were assumed to be correct, the Respondents could prosecute Muzammil Hussain but the police had no authority to detain the bus. The learned counsel referred to Section 95 of the Punjab Motor Vehicles Ordinance, 1965 (the “Ordinance”), and argued that when any accident occurs in which a motor vehicle is involved only a person duly authorized by the Government can inspect it and if he removes it to some other place he must return it to the owner without unnecessary delay which should not in any case exceed 48 hours. He prayed that this petition be accepted and the bus be released to the Petitioner.

1. The learned Additional Advocate General controverted the above contentions. He contended that the bus was used for the commission of offence so no exception could be taken to its seizure. He submitted that FIR No. 31/2020 had been registered in respect of the occurrence and the Petitioner should move the concerned Magistrate for its superdari. According to him, this constitutional petition was not maintainable and prayed for its dismissal.

2. The learned Deputy Prosecutor General and the learned counsel for Respondent No. 5 adopted the arguments of the learned Additional Advocate General.

3. Arguments heard. Record perused.

7. I first take up the objection relating to maintainability of this petition. It is true that the High Court does not entertain constitutional petition when other appropriate or suitable remedy is available under the law. However, the question of adequacy is not a rule of law barring or limiting jurisdiction of the High Court. “Rather it controls and regulates the same where order, act or omission of a functionary appears to be autocratic, capricious or tends to defy mandatory pre-condition for exercise of authority or suffers from total lack of jurisdiction or indicates exercise of assumption of authority which evidently does not vest in it or reflects patent illegality whereby alternate remedy does not seem to be effective or efficacious.”[1] In Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813), the Hon’ble Supreme Court of Pakistan laid down the following guidelines for the High Courts to determine whether the alternative remedy is adequate or not:

“(i) If the relief available through the alternative remedy in its nature or extent is not what is necessary to give the requisite relief, the alternative remedy is not an “other adequate remedy” within the meaning of Article 199.

(ii) If the relief available through the alternative remedy, in its nature and extent, is what is necessary to give the requisite relief, the “adequacy” of the alternative remedy must further be judged with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy with the speed, expense or convenience of obtaining it under Article 199. But in making this comparison , those factors must not be taken into account which would themselves alter if the remedy under Article 199 were used as a substitute for the other remedy.

(iii) In practice the following steps may be taken:

(a) Formulate the grievance in the given case as a generalized category;

(b) Formulate the relief that is necessary to redress that category of grievance;

(c) See if the law has prescribed any remedy that can redress that category of grievance in that way and to the required extent;

(d) If such a remedy is prescribed, the law contemplates that resort must be had to that remedy;

(e) If it appears that the machinery established for the purposes of that remedy is not functioning properly, the correct step to take will be a step that is calculated to ensure, as far as lies in the power of the Court that that machinery begins to function as it should. It would not be correct to take over the function of that machinery. If the function of another organ is taken over, that other organ will atrophy and the organ that takes over will break down under the strain;

(f) If there is no other remedy that can redress that category of grievance in that way and to the required extent or if there is such a remedy but conditions are attached to it which for a particular category of cases would neutralize or defeat it so as to deprive it of its substance, the Court should give the requisite relief under Article 199;

(g) If there is such other remedy, but there is something so special in the circumstances of a given case that the other remedy, which is generally adequate to the relief required for that category of grievance, is not adequate to the relief that is essential in the very special category to which that belongs, the Court should give the required relief under Article 199.

(h) If the procedure for obtaining the relief by some other proceedings is too cumbersome or the relief cannot be obtained without delay and expense or the delay would make the grant of the relief meaningless, High Court would not hesitate to issue a writ if the party applying for it is found entitled to it, simply because the party could have chosen another course to obtain the relief which is due.”

8. This case involves interpretation of law for which these proceedings are the most appropriate. An application under Section 516-A, Cr.P.C. suggested by the learned Additional Advocate General is neither an alternate nor adequate nor efficacious remedy. Therefore, I hold this petition maintainable.

1. The prosecution case is that on 2.2.2020 Respondent No. 5 was travelling with his family in Suzuki Mehran Car No. LEH-16-3678. At about 10:00 a.m. when he reached Laisser, Bus No. LRC-3155 driven by Muzammil Hussain collided with him. As a result, he was injured and the car was badly damaged. It is alleged that the accident took place because of rash and negligent driving of Muzammil Hussain. Respondent No. 5 lodged FIR No. 31/2020 in respect of the incident under Sections 279, 427 & 337-G, PPC. At this stage I would not comment on the applicability of Section 427, PPC as it may cause prejudice to either party but I do observe that Sections 279 and 337-G apply to two different situations. An offence under Section 279, PPC is committed where the rash and negligent driving or ride on a public way endangers human life but when such driving causes hurt or injury to a person Section 337-G is attracted. These are two distinct offences although they form part of the same transaction. Hence, Sections 279 and 337-G, PPC cannot be invoked simultaneously. Reliance is placed on Muhammad Hanif v. The State (1984 PCr.LJ 746), Badshahzada v. The State (1993 PCr.LJ 699), and Haris Khan v. The State (PLD 1993 Pesh. 146).

2. Section 95 of the Ordinance on which the learned counsel for the Petitioner has premised his case reads as under:

3. Inspection of vehicle involved in accident.--When any accident occurs in which a motor vehicle is involved, any person authorized in this behalf by Government may, on production if so required of his authority, inspect the vehicle and for that purpose may enter at any reasonable time any premises where the vehicle may be, and may remove the vehicle for examination:

Provided that the place to which the vehicle is removed shall be intimated to the owner of the vehicle and the vehicle shall be returned without unnecessary delay and in no case later than forty-eight hours of its removal.”

1. The Ordinance is a special law relating to motor vehicles in the province. Section 95, supra, expressly states that when there is an accident the Motor Vehicle Inspector may inspect the vehicle but it cannot be detained for more than 48 hours and should be returned to its owner. The foremost question before this Court is whether this provision is mandatory.

2. There is no principle of universal application to categorize a provision as mandatory or directory. 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. Generally speaking, the use of negative expression in statute indicates that the direction is mandatory. In his book Understanding Statutes (Fourth Edition 2016), S.M. Zafar elucidates:

“It is a general rule that a statute which is negative or prohibitory, even though it provides no penalty for non-compliance, or which contains pre-emptory and exclusive terms, shows a legislative intent to make the provision mandatory, and it has been said that negative words in a grant of power are never construed as directory. On the other hand, while, the use of only affirmative words would require determining whether the statute is mandatory or directory. An intention that it shall be directory is not conclusively drawn from the absence of negative words, since affirmative words may and often do imply, a negative of what is not affirmed. So affirmative words, if absolute, explicit, and pre-emptory, showing that no discretion was intended to be given, render the statute mandatory. Likewise statute containing directions followed by an express provision that in the event of default act done would be invalid, is construed as mandatory.”

1. A statutory provision fixing time for performance of acts may be either mandatory or directory. According to Corpus Juris Secundum (Volume 82, page 876), the provision is ordinarily held directory where there are no negative words restraining the doing of an act after the specified time and no penalty is imposed for delay. On the other hand, the provision is generally considered mandatory where consequences attach to the failure to comply, and where the act to be performed concerns vested rights, procedure or other similar matters. However, in his aforementioned book S.M. Zafar notes that there are certain authorities which hold that “where a statute requires a thing to be done within a certain time limit, it is treated as mandatory because if the only time limit which is prescribed is not obligatory, there is no time limit at all.”

15. I have examined Section 95 of the Ordinance in the light of above principles. The Ordinance aims to address all issues relating to motor vehicles in the province while Sections 94, 94-A and 95 specifically focus on road accidents. In law, an accident is an unintended happening though a party thereto may be held liable for negligence. In certain cases this may entail criminal liability and he may be prosecuted under the relevant Sections of the Pakistan Penal Code, 1860. It is true that it is sometimes necessary to determine the condition of the vehicle to fix liability for the accident but this should not give licence to anybody to detain it for an indefinite or unduly long period. Therefore, in my opinion, while enacting Section 95 the legislature recognized the importance of the inspection of vehicle involved in the accident but at the same time desired that the Motor Vehicle Inspector should complete his proceedings expeditiously and thereafter handed it over to the owner. It considered that forty-eight hours are sufficient for this exercise. The phraseology employed in Section 95 – the use of the words “shall” and “in no case later than” – also indicate that the legislature intended the timeline to be meticulously followed.

1. The State and Respondent No. 5 rely on paragraph (4) of Rule 22.16 of the Police Rules, 1934, to justify the detention of the bus. It is reproduced hereunder:

22.16. Case property.--(1) …

(2) …

(3) …

(4) Motor vehicles detained or seized by the police in connection with cases or accidents shall be produced before a magistrate after rapid investigation or by means of incomplete challan. The evidence relating to the identity or condition of the vehicle should be led and disposed of at an early date, and the magistrate should then be invited to exercise the discretion vested in him by Section 516-A, Code of Criminal Procedure, to order that the vehicle be made over to the owner pending conclusion of the case on security to be produced whenever demanded by the Court.

1. Rule 22.16 postulates that the motor vehicle detained by the police may be of two types: those involved in accidents and those seized in other cases. Insofar as the first category is concerned, it is dealt with by the Ordinance which is a special law. Since the Police Rules, 1934, are the general law and are in conflict with the Ordinance, the latter would prevail. Reliance is placed on Muhammad Mohsin Ghuman and others v. Government of Punjab through Home Secretary, Lahore and others (2013 SCMR 85) and Syed Mushahid Shah and others v. Federal Investigation Agency and others (2017 SCMR 1218). Therefore, Rule 22.16 is of no avail to the Respondents.

2. Inasmuch as Rule 22.16 makes a specific reference to Section 516-A, Cr.P.C., I must also dwell on it briefly. It deals with disposal of property pending trial and reads as under:

516-A. Order for custody and disposal of property pending trial in certain cases.--When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

Provided that…

1. A bare reading of the above section would show that it speaks of two types of properties. They are: properties regarding which any offence appears to have been committed and which appear to have been used for commission of an offence. Bus No. LRC-3155 does not fall in any of these classifications. It is by now well settled that where a driver is being prosecuted for causing hurt or death of a person by rash or negligent driving, the vehicle cannot be said to have been “used” for commission of the offence within the meaning of Section 516-A, Cr.P.C. In Phula Singh v. Emperor (AIR 1931 Lahore 565), Shadi Lal, C.J. set aside the order of the Magistrate refusing to return the car to its owner. He held:

“I think it would be straining the language to hold that the motor car was used for the commission of the offence within the meaning of S. 516-A, Criminal P.C. The ruling in Emperor v. Ilahi Bakhsh [(1904) 4 P.L.R. 1904], is directly applicable to the case.”

1. In Syed Razi Shah v. The State (1971 PCr.LJ 19), a Division Bench of the Karachi High Court interpreted the phrase “property used for commission of an offence” occurring in Section 517, Cr.P.C. and held that it meant things with which the offence was committed. It explained:

“In the Concise Oxford Dictionary the word “use” has been defined to mean, “employ for a purpose”. In this context if the word “property” occurring in the Section 517 is read with the words “used for the commission of any offence”, it would clearly mean such property as has been employed in the commission of any offence and that could only imply an “instrument” with which the offence was committed. The vehicle merely used for going to and escaping from the place of incident could not thus be covered within the meaning of the words “property … used for commission of any offence.”

1. Again, in Rai Bashir Ahmad v. The State (1971 PCr.LJ 255), the Court drew a distinction between custody of crime weapon and other properties like a motor car used as means of transport and observed:

“Admittedly gun is property of the petitioner. It is a weapon of offence and his case is obviously distinguishable from any other property such as a motor car or any other means of transport, the driver of which gets involved under Section 338, P.P.C. or a hackney carriage whose driver is accused of an offence under Section 279, P.P.C. or a ferry used by a criminal for crossing a stream in his attempt to escape from the scene of the crime.”

1. In Sheraz Elahi v. The State (1984 PCr.LJ 1935) Mubasher Hussain was convicted for offences under Sections 304, 337 & 279, PPC and the petitioner’s wagon which he was driving at the time of accident was confiscated. The High Court set aside the order of confiscation. In Burkamal v. The State (1989 PCr.LJ 1110), the High Court held that the taxi used by the accused for going to and escaping from the place of incident was not covered by the words “which appears to have been used in commission of any offence” in Section 516-A, Cr.P.C. It reasoned: “To take a common example, if the culprits escape in a train after commission of offence, the train will not fall within the mischief of the aforesaid words.” Similarly, in Rana Muhammad Salim v. The State (1992 PCr.LJ 750) it was held that vehicles detained in the cases involved in road accidents were not the subject-matter of any offence. The applicants, who were the owners of the vehicles, had not done anything to advance commission of the offence and they could not be held liable for the acts of their drivers under the criminal law.

2. A host of other authorities, including Muhammad Rashid and others v. The State (PLD 1991 Kar. 200), Karachi Bus Owners Association and another v. Inspector-General of Police and 2 others (1995 PCr.LJ 608), Sher Muhammad v. The State (1999 PCr.LJ 2121), Pakistan Motors Transport Federation (Regd.) v. Federation of

Pakistan through Secretary, Ministry of Law & Justice, Islamabad and 3 others (PLD 2004 Lah. 295), and Ajjab Khan v. The State (2005 PCr.LJ 1510) reaffirm the above view.

1. From the above discussion it follows that accident cases are governed by Section 95 of the Ordinance and the vehicle must be returned to the owner after inspection without unnecessary delay and in no case later than 48 hours of its removal.

25. In the instant case, the police claim that they took Bus No. LRC-3155 into custody on 10.2.2020 while the Petitioner alleges that it was on 6.2.2020. However, the fact remains that they are still keeping it which is much beyond the prescribed period. If inspection by the Motor Vehicle Examiner was required, they ought to have got it done and returned the bus to the Petitioner after 48 hours. Since this has not been done, its current detention is without lawful authority and is declared as such. It is accordingly ordered that the bus shall be returned to the Petitioner forthwith.

26. The learned Additional Advocate General submitted that the Petitioner has made alterations in the bus for which proceedings are liable to be initiated against it. The Petitioner has denied the allegation. This issue involves factual inquiry which cannot be undertaken by this Court while exercising constitutional jurisdiction. Any way, if the Petitioner has committed any delinquency, the competent authority may proceed against him in accordance with law.

1. This petition is disposed of in the above terms.

(Y.A.) Petition disposed of

[1]. Hamid Khan, Principles of Administrative Law, A Comparative Study (2012).

PLJ 2020 Lahore 259

Present: Asim Hafeez, J.

MUHAMMAD SHARIF SADRA (deceased) through Legal Heirs, etc.--Appellants

versus

IRFAN LATIF, etc.--Respondents

R.S.A. No. 173 of 2005, decided on 20.3.2020.

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

----S. 12--Qanun-e-Shahadat Order, (10 of 1984), Arts. 102, 103 & 140--Suit for specific performance--Decreed--Appeals--Dismissed--Agreement to sell--Earnest money was paid--Non-execution of agreement--Possession was not handed over--Violation of principle of Qanun-e-Shahadat Order--Absence of notice for completing agreement--Concurrent findings--Challenge to--It transpires that Courts below had overlooked some crucial facets of this case, which are critical for determining and resolving controversy and complexities involved--During course of testimony of appellant, he was put a suggestion regarding execution of agreement, which suggestion was denied and thereafter, appellant was neither confronted with alleged agreement nor with alleged signatures thereupon and subsequent writing at back of agreement, relating to balance consideration and issue of possession--This constitutes gross violation of principle of confrontation envisaged by Article 140 of Qanoon-e-Shahadat Order, 1984--This irregularity is fatal and goes to root of matter--Both Courts below failed to appreciate trite law that in absence of confrontation, agreement in question cannot be used as legal evidence against appellant--Respondent No. 1, in paragraph No. 6, pleaded issuance of Notice to appellant, asking him to complete agreement to sell--Factum of Notice was reiterated by PW-5, who appeared as witness for Respondent No. 1--Notice is conspicuous by its absence and same was not produced on record-- Now I take up case of Respondent No. 2, regarding agreement to sell dated 21.07.1998, subject matter of Civil Revision--The appellant has admitted execution of agreement in favour of Respondent No. 2--Appellant alleged that Respondent No. 2 failed to pay balance consideration, in terms of some verbal arrangement, which is contrary to contents of written agreement--The assertion of appellant is contrary to command of Articles 102 and 103 of Qanoon-e-Shahadat Order 1984, in terms whereof verbal assertion is immaterial when considered in context of available documentary evidence, which too is admitted--Appellant failed to establish default on part of Respondent No. 2, who otherwise led cogent and convincing evidence to prove its claim--In view of above, concurrent findings recorded and legal inferences drawn by Courts below, regarding admissibility of evidence and proof of execution of agreement are contrary to law, and conclusions reached on basis thereof are per-se erroneous and illegal--R.S.A. was allowed.

[Pp. 264, 266 & 267] A, B, C, F & G

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

----Art. 129(g)--Withholding of notice--Adverse inference--Substitute requirement of proceeding notice--Validity-- Production of Notice was crucial and failure thereof indicates conscious withholding of relevant and crucial evidence-- Notice was withheld by Respondent No. 1 without any explanation--Mere production of envelope, alleging delivery of notice to appellant, would not substitute requirement of producing Notice--Absence and failure to produce Notice would raise adverse inference against Respondent No. 1, in terms of Article 129 (g) of Qanoon-e-Shahadat Order, 1984.

[P. 267] D & E

1997 CLC 1580 ref.

Mr. Arshad Malik Awan, Advocate for Appellants.

Mr. Ahmad Waheed Khan, Advocate for Petitioner (C.R. 1108 of 2006).

M/s. Syed Kaleem Ahmad Khurshid and Mian Javed Iqbal Arain, Advocates for Respondents.

Date of hearing: 3.3.2020.

Judgment

Through this single judgment, I propose to decide this RSA and Civil Revision No. 1108/2006, both of which are against consolidated judgment and decree dated 13.10.2005 of learned Additional District Judge, Daska District Sialkot, whereby the appeals filed by the appellant and the revision petitioner (Respondent No. 2 in RSA No. 173/2005) were dismissed, while upholding consolidated judgment and decree of the learned Civil Judge dated 11.12.2000, which decreed suit for specific performance of agreement to sell dated 10.11.1998, filed by the Respondent No. 1 against the appellant, and dismissed suit for specific performance of agreement to sell dated 21.07.1998, filed by the revision petitioner against the appellant.

Facts in RSA No. 173/2005.

1. Briefly the facts, necessary for adjudication of the matter at hand, are that Respondent No. 1 claimed to have negotiated agreement of sale dated 10.11.1998 with the appellant regarding the land, described in paragraph 2 of the plaint, against consideration of Rs. 1,200,000/-, out of which Rs. 430,000/-was stated to be paid in cash, as earnest money upon execution of agreement. And remaining amount of Rs. 770,000/-was payable by the target date, i.e. 31.05.1999. As claimed, balance amount of Rs. 770,000/- was paid on 01.03.1999, details whereof were endorsed at the back of the agreement, whereby possession was allegedly agreed to be delivered after harvesting standing crops. As narrated in the plaint, notice dated 03.05.1999 was issued by Respondent No. 1 to the appellant, seeking performance of contractual obligations and upon failure, Respondent No. 1 was constrained to initiate civil action. The suit was resisted by the appellant, who categorically denied the transaction, execution of the agreement and receipt of the consideration. Upon conclusion of the trial, learned trial Court decreed the claim of the Respondent No. 1, which decree was unsuccessfully challenged before first appellate Court. Hence this second appeal.

Facts in Civil Revision 1108/2006.

1. Revision Petitioner/Respondent No. 2 – brother-in-law of the present appellant -also laid claim to the suit land by virtue of agreement to sell dated 21.07.1998, claimed to have executed by the appellant, against consideration of Rs. 1,800,000/-, out of which Rs. 200,000/-was paid in cash and balance was payable on or before 16.04.1999. Respondent No. 2 alleged default and filed suit for specific performance on 14.05.1999, before the institution of the suit of the Respondent No. 1 on 28.06.1999. Conspicuously, appellant admitted execution of the agreement with Respondent No. 2 but pleaded default in timely payment of consideration amount. The suit of the Respondent No. 2 was dismissed, and appeal filed by the revision petitioner was also dismissed. Hence this Civil Revision. There are two claimants of suit land, each claiming alleged rights on the basis of two separate agreements to sell.

2. Learned counsel for the appellant submits that Respondent No. 1 failed to prove execution of the agreement; the Courts below erroneously proceeded to decide the matter and upheld execution of the agreement by the appellant, solely upon carrying comparison of signatures, which mechanism adopted, without seeking expert opinion, is deprecated by superior Courts for drawing conclusive opinions in matter relating to disputed signatures. Per learned counsel, the evidence of the scribe of agreement to sell (PW-3) was unworthy of any consideration, who unbelievingly failed to recognize the appellant in the Court during cross-examination. Learned counsel submits that credibility of the agreement per-se becomes dubious, when despite payment of full consideration possession of the property was not procured. Adds that independence of the marginal witnesses per-se stood compromised, who were known to the Respondent No. 1. Lastly submits that alleged endorsement at the back of the agreement constitute an illegality, which subsequent writing has to be executed on a separate stamp paper. He referred to following judgments, reported as Sana Ullah and another v. Muhammad Manzoor and another (PLD 1996 Supreme Court 256), Rehmat Ali Ismailia v. Khalid Mehmood (2004 SCMR 361), Major (Retd.) Hamid Ali Khan v. Mian Muhammad Anwar (2006 SCMR 735), Abdul Rasheed through L.Rs. and others v. Manzoor Ahmad and others (PLD 2007 Supreme Court 287), Khan Muhammad v. Muhammad Din through LRs (2010 SCMR 1351), Zafar Iqbal and others v. Mst. Nasim Akhtar and others (PLD 2012 Lahore 386), Syed Sharif Ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others (2012 SCMR 1258), Peer Baksh through LRs and others v. Mst. Khanzadi, and others (2016 SCMR 1417) and Manzoor Hussain v. Haji Khushi Muhammad (2017 CLC 70).

3. Learned counsel for the revision petitioner supported submissions by appellant’s counsel and also questioned genuineness of alleged agreement dated 10.11.1998. He dispelled allegation of default in performance of its obligation qua the agreement with the appellant. He submits that disputed agreement between Respondent No. 1 and appellant was not confronted to the appellant, when it was specifically denied. Learned counsel has relied upon judgment reported as Muhammad Ramzan v. Saif Nadeem Electro (Pvt.) Ltd. through Chairman and 5 others (PLD 2006 Lahore 571).

4. Learned counsel for Respondent No. 1 submits that Respondent No. 1 had adequately established execution of agreement to sell; who produced scribe of agreement, marginal witnesses and proved the payment of consideration. Per learned counsel Court has the power under Article 84 of the Qanoon-e-Shahadat Order, 1984 to compare signatures; possession was not delivered due to standing crops at the time of payment of balance consideration, which fact was endorsed at back of agreement and accordingly witnessed. He submits that judgments referred are distinguishable, and not applicable to this case. Lastly submits that agreement of sale between the appellant and Respondent No. 2 was collusive and designed to counter the claim of the Respondent No. 1, as Respondent No. 2 is appellant’s brother-in-law. He referred the judgments reported as Muhammad Ramzan and 4 others v. Mst. Masooda Hasan and 2 others (PLD 1993 Quetta 88), Abdul Ghaffar v. Muhammad Sharif (1993 CLC 1779), Muslim Commercial Bank Ltd. through General Attorney and another v. Amir Hussain and another (1996 SCMR 464), Abdul Rashid v. Bashiran and another (1996 SCMR 808), Ghulam Rasool and others v. Sardar-Ul-Hassan and another (1997 SCMR 976), District Council, Sialkot v. Chaudhry Nazir Ahmad Khan and 2 others (2001 SCMR 1641), Manzoor Hussain v. Haji Khushi Muhammad (2017 CLC 70), Mukhtar Ahmad v. Returning Officer and others (2017 MLD 282), Sajjad Hussain and 4 others v. Muhammad Yousaf and another (2019 CLC 309), Haji Abdul Majeed and Co. through Managing Partner v. Additional District Judge Burewala District Vehari and 10 others (2019 CLC 1693) and Naveed v. National Database and Registration Authority through Chairman NADRA and 3 others (2020 MLD 157).

5. Arguments heard. And record perused.

6. Essentially the appellant, through this second appeal, questions the legality of the conclusions reached, allegedly based on the inferences erroneously drawn and appreciation of, otherwise, inadmissible evidence. In essence, the issue hinges on that whether the execution of alleged agreement to sell and consideration thereof was proved in accordance with the rules of evidence. Respondent No. 1 was required to substantially prove the execution of agreement to sell dated 10.11.1998 and payment of consideration, when execution thereof was categorically denied by the appellant. Respondent No. 1 produced scribe of the agreement PW-3, marginal witnesses PW-6 & PW-7, who testified in support of the agreement and affirmed payment of consideration.

9. There is no cavil to the principle that Courts are eligible to compare disputed signatures/ thumb marks with admitted writing, which, course is permissible under Article 84 of the Qanoon-e-Shahadat Order, 1984 wherein discretion has been extended, to be exercised depending upon the facts of each case. Now, I proceed to examine the question of admissibility of evidence and decide that whether inferences drawn and conclusions reached, are sustainable in law. It transpires that Courts below had overlooked some crucial facets of this case, which are critical for determining and resolving the controversy and complexities involved. Learned counsel for the revision petitioner has highlighted Respondent No. 1’s failure to confront appellant with the disputed agreement to sell, execution whereof was denied by the appellant. Let’s examine this aspect. The pivotal question is that whether the disputed agreement could be treated as legal evidence when appellant was not confronted with said agreement, signatures thereupon and additional endorsement thereat?

10. Appellant appeared as DW-6, who denied execution of the agreement, its signatures thereupon, and receipt of consideration. During the course of testimony of the appellant, he was put a suggestion regarding execution of the agreement, which suggestion was denied and thereafter, appellant was neither confronted with the alleged agreement nor with alleged signatures thereupon and subsequent writing at the back of the agreement, relating to balance consideration and issue of possession. This constitutes gross violation of the principle of confrontation envisaged by Article 140 of Qanoon-e-Shahadat Order, 1984. This irregularity is fatal and goes to the root of the matter. Both the Courts below failed to appreciate trite law that in the absence of confrontation, the agreement in question cannot be used as legal evidence against the appellant. Reference is made to the ratio decidendi of decision in the case of Syed Muhammad Sultan v. Kabir-ud-Din and others (1997 CLC 1580), relevant portion whereof is reproduced hereunder:

1. We are not impressed with this contention of the learned counsel for the various reasons. As already observed, agreement has not been exhibited and does not form part. of the evidence. The same is true about the writing appearing on the back of the alleged agreement which again has not been exhibited but has been marked as ‘C’ More importantly when the respondent appeared in the witness-box and denied having examined the agreement he was not confronted with the writing and the signatures on the back of the agreement. Though in the cross-examination it was suggested to the respondent that he had extended time for execution of the sale-deed through writing signed by him on the back of the agreement, but on his denial, he was not confronted with the writing. According to Article 140 of the Qanoon-e-Shahadat Order, 1984 which corresponds to Article 145 of the Evidence Act, 1872, such confrontation is mandatory. In Sikandar Hayat and 4 others v. Master Fazal Karim (PLD 1971 SC 730), it was ruled that:

“Where a party has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the admission or the statement made in the witness-box involves the denial of the previous admission or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross-examination was drawn to that statement and he was confronted with the specific portions of that statement which were sought to be used as admissions. Without complying with the procedure laid down in Section 145, the admission contained in the previous statement cannot be used as legal evidence against that party. Where the statements relied on as admissions are ambiguous or vague, it is obligatory on the party who relies on them to draw in cross-examination the attention of opponent to the said statements before he can be permitted to use them for the purpose of contradicting the evidence on oath of the opponent.”

The Supreme Court in the cited case had approved the judgment of this Court in the case of Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Ram and others (AIR 1946 Lah. 65) in which it was held that:

“Where a party has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the admission or the statement made in’ the witness-box involves the denial of the previous admission or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross-examination was drawn to that statement and he was confronted with the specific portions of that statement which were sought to be used as admissions. Without complying with the procedure laid down in Section 145, the admission contained in the previous statement cannot be used as legal evidence against that party.”

1. The disputed agreement to sell dated 10.11.1998, though exhibited, cannot be treated or used as legal evidence against the appellant in wake of non-compliance of Article 140 of Qanoon-e-Shahadat Order, 1984.

12. This case has another peculiar feature, not discussed by the Courts below. It is the case of the Respondent No. 1 that balance consideration of Rs. 770,000/-was paid on 01.03.1999, which was even before the target date agreed in terms of the agreement dated 10.11.1998, wherein target date fixed was 15.05.1999. The controversy regarding payment of balance consideration and alleged endorsement at the back of the agreement assumes greater significance when contextualized in the context that no possession was delivered at the time of payment of balance consideration. It is the case of the Respondent No. 1 that appellant sought some time to harvest crop and agreed to deliver possession thereafter. Perusal of the plaint revealed that Respondent No. 1, in paragraph No. 6, pleaded issuance of Notice dated 03.05.1999 to the appellant, asking him to complete the agreement to sell dated 10.11.1998. Factum of Notice was reiterated by PW-5, who appeared as witness for the Respondent No1. Notice dated 03.05.1999 is conspicuous by its absence and same was not produced on record. What would be the effect and implications of such conspicuous failure? The relevance of subject matter Notice increases manifold in view of the fact that balance payment was allegedly made on 01.03.1999, when statement of the appellant regarding delayed delivery of possession was reduced into writing at the back of the agreement, and Notice, alleging default, was issued on 03.05.1999. Whether Notice dated 03.05.1999 contained any assertion regarding payment of balance consideration on 01.03.1999 and endorsement regarding request to delay the matter of delivery of possession by the appellant till harvesting of standing crops? The production of Notice was crucial and failure thereof indicates conscious withholding of relevant and crucial evidence. In these circumstances, the Notice and contents thereof was a substantive piece of evidence, required to prove factum of alleged request to defer delivery of possession and balance consideration, which Notice was withheld by the Respondent No. 1 without any explanation. Mere production of envelope, alleging delivery of the notice to the appellant, would not substitute requirement of producing Notice. The absence and failure to produce Notice would raise adverse inference against Respondent No. 1, in terms of Article 129 (g) of Qanoon-e-Shahadat Order, 1984.

13. The endorsement in writing, at the back of the agreement, regarding request to defer delivery of possession till cutting of standing crops and factum of balance payment, was neither shown nor said writing was confronted to the appellant.

1. In view of aforesaid fatal irregularities and lapses, there remains no requirement to discuss any other issue or advert to ocular evidence, which otherwise pale into insignificance. The Respondent No. 1 failed to prove the execution of the agreement to sell and admissibility thereof. The judgments referred may constitute authorities on their own facts but not applicable to this case, hence there is no need to discuss the ratio or reasoning therein for the purposes of adjudication of lis at hand.

15. Now I take up case of Respondent No. 2, regarding agreement to sell dated 21.07.1998, subject matter of Civil Revision. The appellant has admitted the execution of agreement in favour of Respondent No. 2. Appellant alleged that Respondent No. 2 failed to pay balance consideration, in terms of some verbal arrangement, which is contrary to the contents of written agreement. The assertion of appellant is contrary to the command of Articles 102 and 103 of Qanoon-e-Shahadat Order, 1984, in terms whereof verbal assertion is immaterial when considered in the context of available documentary evidence, which too is admitted. The appellant failed to establish default on the part of Respondent No. 2, who otherwise led cogent and convincing evidence to prove its claim.

16. In view of the above, the concurrent findings recorded and legal inferences drawn by the Courts below, regarding the admissibility of evidence and proof of execution of the agreement dated 10.11.1998 are contrary to law, and conclusions reached on the basis thereof are per-se erroneous and illegal.

1. I allow RSA No. 173 of 2005 and Civil Revision No. 1108 of 2006 and set aside judgments and decrees dated 11.12.2000 and

13.10.2005 by the Courts below, dismiss the suit of the Respondent No. 1 and decree the suit of Respondent No. 2 accordingly. No orders as to the costs.

(Y.A.) RSA allowed

PLJ 2020 Lahore 268

Present: Asim Hafeez, J.

TARIQ MEHMOOD--Petitioner

versus

PUNJAB LABOUR COURT NO. 2 through its Presiding Officers etc.--Respondents

W.P. No. 203905 of 2018, decided on 21.10.2019.

Punjab Industrial Relations Act, 2010--

----Ss. 2(xxxi), 33, 33(4)--Payment of Wages Act, 1936, S. 15(1)-- Constitution of Pakistan, 1973, Art. 199--Employment a security guard--Voluntarily retirement--Accepted--Grievance notice--Grievance petition--Dismissed--Entitlement for gratuity claim--Maintainability--Petitioner is not a “Worker” or “Workman” in view of section 2(xxxi) of Punjab Industrial Relations Act 2010 (“Act, 2010”) - in lieu of voluntary retirement sought and allowed - and same cannot seek redressal by giving grievance notice and/or invoking jurisdiction of learned Labour Court in terms of Section 33(4) of Act, 2010, for recovery of alleged claim of gratuity, which claim can effectively be raised before Authority in terms of Section 15(1) of Payment of Wages Act, 1936--No illegality or jurisdictional error has been committed by forums below, while adjudicating upon action, which had rightly observed held that no jurisdiction vested in terms of Section 33 of Punjab Industrial Relations Act, 2010 to entertain and adjudicate upon claim relating to payment of gratuity amount--Petition was dismissed. [P. 270] A

Malik Riaz Ahmad Nunari, Advocate for Petitioner.

Date of hearing: 21.10.2019.

Order

The petitioner has assailed Judgment dated 17.04.2018 by learned Punjab Labour Appellate Tribunal, Lahore, whereby the appeal filed by the petitioner was dismissed and order of 05.03.2018 by Punjab Labour Court No. II, Lahore, was upheld, which had dismissed the grievance petition of the petitioner - filed in terms of Section 33 of the Punjab Industrial Relations Act, 2010 - on the premise that claim for the recovery of alleged payable gratuity amount can competently be filed in terms of the provisions of Payment of Wages Act, 1936.

1. Brief facts, necessary for adjudication of the lis at hand, are that petitioner was employed as security guard with the Respondent No. 3, who tendered resignation on 06.05.2017, made effective from 04.07,2017. Respondent No. 3 accepted the resignation and intimated the petitioner to collect final dues, in terms of office order dated 08.05.2017, wherein it was also conveyed to the petitioner that same was not entitled to claim gratuity payment’- perhaps not admissible in terms of an earlier office order and terms and conditions appearing in the appointment letter. The petitioner conveyed grievance notice and thereafter approached Labour Court by way of submitting grievance petition, wherein declaration was sought against the office order and claim of payment of gratuity was agitated. It is pertinent to mention that petitioner had not challenged office order dated 06.06.2007, issued before the appointment of the petitioner. Grievance petition was dismissed on 05.03.2018 being not maintainable. Petitioner unsuccessfully filed appeal before the Labour Appellate Tribunal, which was dismissed. Hence, this petition.

2. After hearing the arguments and perusal of the record, I am convinced that in pith and substance, the claim of the petitioner relates to the recovery of alleged payable gratuity amount. The question is that whether such claim can be agitated in terms of Section 33 of the Punjab Industrial Relations Act, 2010, when the petitioner sought retirement voluntarily and same was allowed. Before dilating upon the question required consideration, it is expedient to reproduce sub-section (1) of Section 15 of Payment of Wages Act, 1936, which reads as follows:

Section 15(1) of Payment of Wages Act, 1936:-

1. Claims out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims.--The Provincial Government may, by notification in the official Gazette appoint any Commissioner for Workmen’s Compensation or other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages, or non-payment of dues relating to provident fund or gratuity payable under any law or delay in the payment of wages, of persons employed or paid in that area.

[Emphasis supplied]

4. The petitioner is not a “Worker” or “Workman” in view of Section 2(xxxi) of Punjab Industrial Relations Act 2010 (“Act, 2010”) - in lieu of voluntary retirement sought and allowed - and same cannot seek redressal by giving grievance notice and/or invoking jurisdiction of learned Labour Court in terms of Section 33(4) of Act, 2010, for the recovery of alleged claim of gratuity, which claim can effectively be raised before the Authority in terms of Section 15(1) of Payment of Wages Act, 1936. No illegality or jurisdictional error has been committed by the forums below, while adjudicating upon action, which had rightly observed/held that no jurisdiction vested in terms of Section 33 of Punjab Industrial Relations Act, 2010 to entertain and adjudicate upon claim relating to the payment of gratuity amount.

1. In view of the above, this petition is without any merit and same is, therefore, dismissed.

(Y.A.) Petition dismissed

PLJ 2020 Lahore 270 (DB)

Present: Muhammad Ameer Bhatti and Atir Mahmood, JJ.

Mst. SARDARAN BIBI etc.--Appellants

versus

TOWN COMMITTEE KHUDDIAN and another--Respondents

R.F.A. No. 560 of 2013, heard on 10.3.2020.

Land Acquisition Act, 1894 (I of 1894)--

----Ss. 18 & 20--Filling of reference--Partially accepted--Quantum of price of land--Determination for announcement of award--Enhancement of compensation--Non-joinder of necessary party--Challenge to--AW-3/appellant was candid to testify that price of land at time of notification @ Rs. 5000/- per marla; accordingly compensation was enhanced by learned Referee Court vide its impugned judgment, hence learned trial Court had not committed any illegality to award compensation explicitly delineated by appellants as price of land at time of notification by appellants in their evidence-- Referee Court is under legal obligation to issue notices to all stakeholders including Government through Collector, acquiring agency/body and even those landlords who have not accepted price fixed in Award irrespective of their non-impleadment, hence omission to implead them as defendant/respondent in Reference will not turn out to be fatal-- Referee Court has not committed any illegality and irregularity while fixing quantum of compensation in terms of appellants’ claim at time of passing of notification--Appeal was dismissed.

[Pp. 275, 276 & 277] A, B & C

PLD 1991 SC 143 and 1996 SCMR 826 ref.

Mr. Ahmad Waheed Khan, Advocate for Appellants.

Mr. Ghulam Fareed Sanotra, Advocate and Mr. Junaid Razzaq, Assistant Advocate General for Respondents.

Date of hearing 10.03.2020.

Judgment

Muhammad Ameer Bhatti, J.--This appeal is directed against the judgment dated 31.01.2013 of the learned Referee Court whereby Reference of the appellants filed under Section 18 of the Land Acquisition Act, 1894, was partially accepted and quantum of compensation was fixed at the rate of Rs. 5000/- per marla instead of Rs. 50,000/- per marla as claimed by the appellants.

1. Facts of the case are not necessary to be reiterated here as the same have already been articulated in the impugned judgment passed by the learned Senior Civil Judge, Kasur/Referee Court.

2. We have heard the learned counsels for the parties and gone through record of the case with their able assistance.

3. Indubitably the appellant-Falak Sher, who appeared as AW-3, in his testimony admitted price of the land at the time of Notification under Section 4 of the Act, 1894, at the rate of Rs. 5000/-per marla, however, he explained therein that price at the time of Award was not less than Rs. 50,000/-per marla, therefore, the learned Referee Court committed error by not fixing price of the land prevailing at the time of issuance of Award instead of fixing it what was at the time of Notification. Adds that quantum of price of land should have been determined at the time of announcement of Award. While relying on judgments of Hon’ble Supreme Court in the cases reported as Government of N.-W.F.P. and others v. Faiz Muhammad Khan and others (PLD 2007 Supreme Court 614) and Land Acquisition Collector and others v. Mst. Iqbal Begum and others (PLD 2010 Supreme Court 719), his further contention is that the market value and potential value are not enough to determine the compensation but inflationary trend of currency till announcement of Award shall also be considered and this aspect of the case is missing in the impugned judgment, therefore, the same is unsustainable in the eye of law. It is appropriate to reproduce the relevant para of the case-law cited in PLD 2007 Supreme Court 614, supra, as under:

“12. In Nawabzada Muhammad Saeed Khan v.The Collector, Land Acquisition 1990 MLD 1232, a Division Bench of this Court after surveying the entire case law laid down the following principles in respect of assessment of a compensation:--

“(1) The market value or market price means the price property would fetch in the market. The price will be highest price a willing buyer would pay and a willing seller would accept both being fully informed and the property being exposed for a reasonable period of time.

(2) The market value may be different from the price a property can actually be sold at a given time. The market value is that price which it might be expected to bring if offered for sale in a fair market.

(3) In assessing the compensation the potential value i.e. the benefits, advantages arising from the present use and future use are to be taken into consideration.

(3) The inflationary trend and depreciation in currency of the country between the date of acquisition under Section 4 of the Act and the date of award also should not be totally ignored and be taken into consideration.”

However other referred judgment of Hon’ble Supreme Court PLD 2010 Supreme Court 719, supra, is silent with regard to inflationary trend of currency, wherein it has been held:

“Various factors have to be taken into consideration i.e. the size and shape of the land, the locality and its situation, the tenure of property, the user, its potential value, and the rise or depression in the value of the land in the locality and even in its near vicinity. In our view real, proper and potential value, keeping in view all the relevant factors have been determined and it is unexceptionable. It is well settled by now that “to determine compensation the Court must ascertain the value on the date of notification, considering various factors including nature and location of acquired land and sale price of adjoining lands. In assessing market value of land, its location, potentiality and price evidenced by transactions of similar land at the time of notification are factors which should be kept in view.” (emphasis supplied)

1. On the other hand, learned counsel for the respondents by placing reliance on Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others (2010 SCMR 115) contends that the Reference before the learned Referee Court filed by the appellants was not maintainable and liable to be rejected on account of non-joinder of necessary party viz., the Government of Punjab, being violative of Section 79, C.P.C. and Article 174 of the Constitution of Islamic Republic of Pakistan.

2. We are conscious of the law laid down by the apex Court in PLD 2007 Supreme Court 614, relied upon by the learned counsel for the appellants providing for the guidelines viz-a-viz determination of price-compensation to be particularly taken into account are the inflationary trend and depreciation in currency of the country from the period of notification to the date of announcement of Award whereas the dictum laid down in 2010 SCMR 115, referred to by the learned counsel for the respondents is silent in this regard for the obvious reason that mandate of Statute for determination of price limited upto issuance of notification went till announcement of Award considering various factors including nature, location of acquired land, sale price of adjoining lands and potentiality. Entitlement of the landlord to claim the price of land at the time of taking over possession/notification, is always mandatory consideration, therefore, the other formality regarding announcement of Award will not affect the price of the land; hence any period consumed in holding such formalities cannot be reckoned as fatal and provide any advantage to the landlord to call for reconsideration/redetermination of compensation of land because rights/interest of the vendors/landlords have already been duly protected under the law by granting 15% compulsory charges-compensation and 8% compound interest till its payment. In such eventuality, inflationary trend and depreciation in currency of the country had been adequately met with and for this probable reason this portion of consideration was never endorsed by Hon’ble Supreme Court in latter judgment PLD 2010 Supreme Court 719, supra.

3. The criteria for determination of compensation of acquisition laid down by the superior Courts of the country is termed as, “market value of acquired property, its potentiality, nature, size, shape and strategic location. Civil Aviation Authority through Project Director and others v. Rab Nawaz and others (2013 SCMR 1124) unequivocally encompassed the proposition in the following manner:

“Keeping all the factors like potentiality, Location, Market value and the absence of the free will to sell, the amount of Rs. 70,130 per kanals is the compensation that could be awarded to the landowners of the above mentioned 4 adjoining villages whose land has been acquired.” We do not find that such reasoning and the view set forth by the learned High Court, is against the established principles for the appreciation of the evidence on the record, especially in regard to the fixation of “market value” for the acquisition of the properties under the Act.”

“Land Acquisition Collector, G.S.C., N.T.D.C., (WAPDA), Lahore and another v. Mst. Surraya Mehmood Jan” (2015 SCMR 28), “Land Acquisition Collector, Abbottabad and others v. Gohar-ur-Rehman Abbasi” (2009 SCMR 771), “Fazal Haq College through Vice-Chairman v. Said Rasan and others” (PLD 2003 Supreme Court 480), “Province of Punjab through Collector, Attock v. Engr. Jamil Ahmad Malik and others” (2000 SCMR 870), “Water and Sanitation Authority and another v. Niaz Muhammad and 5 others” (1994 SCMR 1648), “Land Acquisition Collector, Abbottabad and others v. Muhammad Iqbal and others” (1992 SCMR 1245), “Government of Pakistan through Military Estate Officer, Abbottabad and another v. Ghulam Murtaza and others” (2016 SCMR 1141), “Province of Punjab through Land Acquisition Collector and another v. Begum Aziza” (2014 SCMR 75) and “Government of N.W.F.P. and others v. Faiz Muhammad Khan and others” (PLD 2007 Supreme Court 614) are quoted with advantage.

1. On the other hand, Hon’ble Supreme Court while interpreting Section 25 of Land Acquisition Act in case reported as Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad through Legal Heirs (PLD 2005 Supreme Court 311) has held that compensation cannot be awarded beyond the claim of the landlord at the time of notification. It means that apex Court specifically declared compensation beyond the scope of landlord’s own claim at the time of notification; coming to the naught. Relevant para of the said case-law is reproduced hereunder:

“In the instant case admittedly the respondents/plaintiffs upon whom notices under sub-section (3) of Section 9 of the said Act were duly served as observed above and pursuant to that in the application respondent specifically claimed Rs. 40,000 per acre and in view of other documentary as well as oral testimony on record, the respondents/plaintiffs would not be entitled to claim more than what they had claimed in pursuance of service of notice under Section 9(1) of the said Act i.e. Rs. 40,000 per acre hence there was no jurisdiction in law vested with the learned Judge in Chambers to enhance the rate of compensation from Rs. 40,000 to 70,000 per acre in the cross-objections filed before him. Learned Judge in Chambers has placed reliance upon the case of Hyderabad Development authority (supra) but in the said cited case notice under Section 9 of the said Act was not served upon the claimant and the notices were not produced in the Court, therefore it was observed by this Court at page 50 of the said judgment that it was not possible to say that requisite notices according to Section 9 were issued consequently the provision of Section 25(2) of the said Act could not be invoked and it was also observed that the claimant have omitted for sufficient reasons their claim therefore they were entitled to enhanced rate of compensation and it was also found that claimant acted in good faith and there did not appear to be any negligence on their part. However, in the instant case the notices under Section 9 of the said Act were duly served and in response to the said notice the claimants made a statement in the form of an application claiming not less than Rs. 40,000 per acre, therefore in view of sub-section (1) of Section 25 of the said Act, it was mandatory for the Court not to enhance the amount than what was claimed by the claimant in pursuance of the notice issued under Section 9 of the said Act. Reference may be made to (i) Prasannakumar Datta v. Secretary of State AIR 1934 Calcutta 525, and (ii) Punjab State v. M/s. Lachman Dass Sons AIR 1964 Punjab 68, wherein learned Division Bench of the Punjab Indian High Court has observed that provisions of Section 25 limited the jurisdiction of the Court in the matter of enhancement of compensation and thus there can be no question of waiver of these provisions. A Court cannot do what the statute expressly forbids. Neither by consent nor by waiver the mandatory provision for the statute can be either modified or waived. It is a statutory duty which is cast on the Court and effect must be given to it. It is not a benefit which is conferred on any party.”

In this case, AW-3/appellant was candid to testify that the price of land at the time of notification @ Rs. 5000/- per marla; accordingly compensation was enhanced by the learned Referee Court vide its impugned judgment, hence the learned trial Court had not committed any illegality to award the compensation explicitly delineated by the appellants as price of the land at the time of notification by the appellants in their evidence.

9. So far as the contention of the learned counsel for the respondents for rejection/disposal of the Reference on account of non-joinder of necessary party/Government of Punjab is concerned, it carries no substance because Section 20 of the Land Acquisition Act, 1894, which is special provision to deal with acquisition matters, provides the issuance of notice to Government or department for whose benefit land was acquired as obligatory, therefore, Referee Court is under legal obligation to issue notices to all stakeholders including the Government through Collector, acquiring agency/body and even those landlords who have not accepted the price fixed in Award irrespective of their non-impleadment, hence omission to implead them as defendant/respondent in Reference will not turn out to be fatal. Even otherwise it is settled law that special provision will take precedence over the general provision, which stands reaffirmed by Honourable Supreme Court in Brig. Sher Ali Baz and another v. The Secretary, Establishment Division and others (PLD 1991 SC 143), which reads as under:

“There is a very well entrenched principle of interpretation of statutes and statutory instruments and it is Generalia specialibus non derogant meaning ‘General words do not derogate from special provisions, or, ‘special provisions will control general provisions.”

Similarly, NeimatAli Goraya and 7 others v. Jaffar Abbas, Inspector/Sargeant Traffic through S.P., Traffic, Lahore and others (1996 SCMR 826) interpreted as follows:

“It is well-settled principle of interpretation that whereas general law as well as special law applied to a particular case then to the extent of application of special law in that case the provisions of general law stand displaced. Rule 8 of the Rules of 1974 referred by the learned counsel for the respondents, is a general provision of law applicable to all directly recruited civil servants in Punjab for determining their seniority inter se while rule 12.2(3) of the Rules, which also deals with the same subject, is applicable only to a specific category of civil servants, namely, members of Police Force. Rule 12.2(3) of the Rules, therefore, is a special provision of law while rule 8 of the Rules of 1974 is a general provision of law, both dealing with the same subject. The former being applicable to a specific category of civil servants while the latter is applied to the whole body of civil servants in Punjab. Therefore, if the provision of rule 12.2(3) of the Rules applied to a case, to that extent rule 8 of the Rules of 1974 will be inapplicable.”

10. In this view of the mater, the learned Referee Court has not committed any illegality and irregularity while fixing the quantum of compensation in terms of appellants’ claim at the time of passing of notification, therefore, this appeal has no force and is dismissed accordingly. No order as to cost.

(Y.A.) Appeal dismissed

PLJ 2020 Lahore 277

Present: Shahid Karim, J.

DAEWOO PAKISTAN EXPRESS BUS SERVICE LTD. and another--Petitioners

versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN (SECP) and others--Respondents

W.P. No. 172335 of 2018, heard on 11.3.2020.

Companies Act, 2017--

----Ss. 221, 221(5), 231 & 256--Complaint filed by share-holder--Allegations of--Mismanagement, fraudulent activities and issuance of new shares to third party--Inspection order--Powers of commission--Scope of inspection--Exercising of discretionary powers--Challenge to--Empowers Commission to require any company to open for inspection its books of account and books and papers to any officer authorized by Commission--It shall be duty of every director and officer of company to produce to person making inspection all such books of account and books and papers of company in his custody or under his control and to furnish him with such statements, information or explanation relating to affairs of company as person may require of him--Complainant simply filed a complaint to Commission which passed Inspection Order and served it upon Daewoo--Entire basis of that order are allegations made in complaint on part of complainant--Thus, plainly and clearly, Commission did not bring its own independent mind to bear on entire aspect of case and by acting mechanically passed Inspection Order--No reasoned and deliberative process preceded making of Inspection Order--This is against grain of core principles underlying Section 221--If Commission were to proceed on every complaint filed to it by a shareholder against a company, it would seriously jeopardize right of a company to carry on its business without fear of being hounded by inspectors appointed by Commission on allegations made by shareholders which may not have any basis or support--Any effort to unravel affairs of a company is a serious concern for that company and impedes normal business activities of that company and should not be permitted to be done without defining parameters of powers of Commission under various provisions of Act, 2017--There is no doubt in my mind that exercise of discretionary power by officer issuing Inspection Order was influenced by extraneous considerations which could not lawfully be taken into account--Neither Commission has laid down a framework within which proceedings may be set in motion on disclosure of voluntary information by a person, nor has it made it compulsory for such actions to be considered by Commission periodically, in a meeting convened for purpose--It is essential that there be control of delegatee’s power by Commission--Commission (or its delegate in this case) did not have any material before it independent of allegations made by complainant for valid exercise of powers under Section 221 of Act, 2017--Petition was allowed.

[Pp. 280, 281, 282, 283, 285, 287 & 288] A, B, C, D, E, F & G

M/s. Imtiaz Rashid Siddiqui, Shahryar Kasuri, Raza Imtiaz Siddiqui and Sabeel Tariq Mann, Advocates for Petitioners.

Kh. Aizaz Ahsan, Advocate for Respondent No. 6.

Mr. Ruman Bilal, Advocate for SECP for Respondents.

Date of hearing: 11.3.2020.

Judgment

The petitioner Daewoo Pakistan Express Bus Service Limited (“Daewoo”) is a public limited unlisted company incorporated under the laws of Pakistan. Its principal activity is the provision of inter and intra city passenger transportation. The facts are not contentious and may be briefly stated. The cause of action for the instant petition stems out of an order issued by the Respondent No. 2, Director Corporatization and Compliance Department, Company Law Division SECP dated February 22, 2018. The order (hereinafter the Inspection Order) was passed under Section 221 of the Companies Act, 2017 (The Act). This was followed by a letter dated February 26, 2018 by which Daewoo was informed of the passing the Inspection Order and was required to ensure the availability of books of account, record papers and other documents for inspection mentioned in the letter. This was addressed to Daewoo by a Joint Registrar of SECP. The Inspection Order in its first three paragraphs gives an inkling into the causes which triggered the issuance of the Order. It was said in the order that:

“Mr. Saad S. Faruqui (the Complainant), shareholder of M/s. Daewoo Pakistan Express Bus Service Limited (the “Company”) has filed a complaint dated 11 December 2017 alleging that the management of the Company is engaged in various illegal and fraudulent activities and resources of the Company are being used for personal benefits. It has been alleged that the Chief Executive Officer (CEO) has unauthorizedly issued new shares to third parties and transferred shares to persons/entities without following the process of law, thereby causing loss to the shareholders and depriving the existing shareholders of their lawful right.

1. The Complainant has further contended that the CEO of the Company has siphoned off huge money of the company and borrowed massively from various financial institutions and created circumstances for the premature departure of financial institutions. It has further been alleged that there have been multiple changes made to the board of directors without fulfilling the necessary requirements of law and ensuring good corporate governance, as well as the creation of multiple subsidiaries without seeking necessary approvals from the board of directors and members of the Company.

2. To probe the matter further and in order to ensure the veracity of these allegations, it is considered essential to inspect the books of accounts and books and papers of the Company. I, therefore, in exercise of the powers conferred under Section 221 of the Companies Act, 2017 and in pursuance of S.R.O No. 1136(I)/2017 dated October 30, 2017 hereby appoint Mr. Asif Muzaffar Sheikh, Join Registrar and Mr. Irfan Afzal, Joint Registrar (the Institution Team) to conduct an inspection of M/s. Daewoo Pakistan Express Buss Service Limited.”

3. Thus, doubtless, the Inspection Order was issued on a complaint filed by one Saad S. Faruqui (who has appeared through his counsel today) who claims to be a shareholder of Daewoo and which contains allegations of mismanagement of the company and refers to the various illegal and fraudulent activities purportedly carried out by the management of the company. Further allegations were made against the Chief Executive Officer who is alleged to have issued new shares to third parties and transferred shares to persons/ entities without following the process given in the Act, 2017. This complaint prompted the Commission for an order to be made under Section 221 of the Act, 2017 which provides as under:

4. Inspection of books of account by the Commission.--(1) The books of account and books and papers of every company shall be open to inspection by any officer authorised by the Commission in this behalf if, for reasons to be recorded in writing, the Commission considers it necessary so to do.

(2) It shall be the duty of every director, officer or other employee of the company to produce to the person making inspection under sub-section (1) all such books of account and books and papers of the company in his custody or under his control, and to furnish him with any such statement, information or explanation relating to the affairs of the company, as the said person may require of him within such time and at such place as he may specify.

(3) It shall also be the duty of every director, officer or other employee of the company to give to the person making inspection under this section all assistance and facilitation in connection with the inspection which the company may be reasonably expected to give.

(4) The officer making the inspection under this section may, during the course of inspection--

(a) make or cause to be made copies of books of account and other books and papers; or

(b) place or cause to be placed by marks of identification thereon in token of the inspection having been made;

(c) take possession of such documents and retain them for thirty days if there are reasonable grounds for believing that they are evidence of the commission of an offence.

(5) Where an inspection of the books of account and books and papers of the company has been conducted under this section, by an officer authorised by the Commission, such officer shall make a report to the Commission.

(6) Any officer authorised to make an inspection under this section shall have all the powers that the Commission has under this Act in relation to the making of inquiries.”

3. Section 221, reproduced above, simply empowers the Commission to require any company to open for inspection its books of account and books and papers to any officer authorized by the Commission. The only prerequisite is that reasons have to be recorded in writing in issuing an order under Section 221. At first blush, the provisions of Section 221 require the Commission to make an informed decision on its own regarding inspection of books of account of any company in respect of which an order is required to be passed under Section 221. The provision further provides that it shall be the duty of every director and officer of the company to produce to the person making the inspection all such books of account and books and papers of the company in his custody or under his control and to furnish him with such statements, information or explanation relating to the affairs of the company as the person may require of him. By sub-section (5) of Section 221, where an inspection of the books of account has been conducted by an officer authorized by the Commission, such officer shall make a report to the Commission. This necessarily brings into focus the provisions of Section 256 which relates to investigation of the affairs of a company by the Commission and which, by its terms, provides that:

“256. Investigation into affairs of company.--(1) Where the Commission is of the opinion, that it is necessary to investigate into the affairs of a company--

(a) on the application of the members holding not less than one tenth of the total voting power in a company having share capital;

(b) on the application of not less than one tenth of the total members of a company not having share capital;

(c) on the receipt of a report under sub-section (5) of Section 221 or on the report by the registrar under sub-section (6) of Section 254;

itmay order an investigation into the affairs of the company and appoint one or more persons as inspectors to investigate into the affairs of the company and to report thereon in such manner as the Commission may direct:

Provided that before making an order of investigation, the Commission shall give the company an opportunity of being heard.

(2) While appointing an inspector under sub-section (1), the Commission may define the scope of the investigation, the period to which it is to extend or any other matter connected or incidental to the investigation.

(3) An application by members of a company under clause (a) or (b) of sub-section (1) shall be supported by such evidence as the Commission may require for the purpose of showing that the applicants have good reason for requiring the investigation.

(4) The Commission may, before appointing an inspector, require the applicants to give such security for payment of the costs of the investigation as the Commission may specify.”

1. One of the grounds for initiating an investigation into the affairs of a company is upon the receipt of a report under sub-section (5) of Section 221. Thus, Section 221 has a close connection with Section 256 and any report compiled under this provision would logically form the basis of an investigation sought to be conducted by the Commission into the affairs of that company. Section 221 merely relates to the inspection of books of account by the Commission whereas Section 256 clothes the Commission with the power to investigate into the affairs of a company. It follows indubitably that these provisions relate to prying into affairs of a company by the Commission and the legislature has therefore circumscribed the limits of the powers vested in the Commission to initiate such actions.

5. In particular, in respect of investigation into the affairs of a company under Section 256, there are only three instances under which the investigation can be ordered by the Commission. By clause (a) of sub-section (1), it can be done on the application of members holding not less than one tenth of the total voting power in a company having share capital and in terms of clause (b) of sub-section (1) on the application of not less than one tenth of the total members of a company not having share capital. The learned counsel for Saad S. Faruqui (the complainant) concedes that the complainant does not possess the qualifications mentioned in clauses (a) and (b) of sub-section (1) of Section 256. Therefore, the complainant could not have filed an application under Section 256 directly. He however chose an indirect modus operandi to trigger and put into motion the investigation into the affairs of Daewoo envisaged by Section 256. For, inevitably, the proceedings under Section 221 lead to the investigative powers contemplated by Section 256 and so is equally egregious and harmful for any company which would, at once, be at guard of its creeping danger. The complainant simply filed a complaint to the Commission which passed the Inspection Order and served it upon Daewoo. The entire basis of that order are the allegations made in the complaint on the part of the complainant. Thus, plainly and clearly, the Commission did not bring its own independent mind to bear on the entire aspect of the case and by acting mechanically passed the Inspection Order. No reasoned and deliberative process preceded the making of the Inspection Order. This is against the grain of the core principles underlying Section 221. For Daewoo this has unpalatable consequences, in that, the inspection would likely lead to the compiling of a report in terms of sub-section (5) of Section 221 and on which the Commission would proceed to appoint Inspectors by exercise of powers under Section 256 of the Act, 2017. Therefore, the two provisions, that is, Sections 221 and 256 are closely tied in with each other and have to be read together while determining the true import and construction of Section 221. Surely, the legislature realized the need to fence the powers conferred on the Commission and this intention which permeates both Sections 221 and 256 cannot be circumvented by a contraption. Learned counsel for Daewoo relies upon an order passed by this Court in W.P No. 20088 of 2012 which involved the question regarding appointment of inspectors under the erstwhile Section 231 of the Companies Ordinance, 1984 which is in pari materia with Section 221. This judgment was followed in W.P No. 27555 of 2017 by relying upon the following excerpt of the earlier judgment passed by a learned Single Judge (Shams Mehmood Mirza J.):

“… It is accepted position that report under Section 231(5) can lead to investigation and appointment of inspectors under Section 263 but inspectors cannot be appointed simultaneously with the order of inspection of books of accounts and other books and papers as SECP proceeded to do through letter dated 01.08.2012. Be that as it may, in case inspectors are to be appointed then prior show-cause notice has to be given. For all intents and purposes, through letter dated 01.08.2012, SECP exercised powers under Section 265 of the Ordinance as under Section 231 of the Ordinance, it had no power to appoint inspectors to carry out the investigation into the affairs of the petitioners. The fact that inspectors were appointed under Section 265 of the Ordinance is furthermore apparent from the task given to them in terms of clause 2 of letter dated 01.08.2012. The registrar or the inspecting official at the most can inspect the books of account and other documents/papers of similar nature in exercise of powers under Section 231 of the Ordinance. However, the wide nature of work the inspectors were required to perform under the impugned letter could not be undertaken in terms of Section 231 of the Ordinance. The source of power for issuance of order/letter dated 01.08.2012 was located in Section 265 of the Ordinance and, therefore, SECP had to issue the show-cause notice to the company before taking the proposed action. Notwithstanding the vital question of issuance of show-cause notice, it is also to be noted that the power for appointment of inspectors under Section 265(b) of the Ordinance to carry out the investigation in the affairs of the company is discretionary and is dependent upon the formation of an opinion (“in the opinion of the Commission”) that such an investigation is necessary …”

1. It was further held that:

“… This Court is of the opinion that the scope of inspection of books of account and other books and papers under Section 231 of the Ordinance has its limits and has to be distinguished from the investigation of the company’s affairs under Sections 263 and 265 of the Ordinance.”

1. Thus, a distinction was drawn between the scope of inspection under Section 231 as distinguished from the investigation of the company’s affairs under the provisions of Sections 263 and 265 of the Ordinance, 1984. However, in the case of Atlas (referred to above) the controversy turned on the question whether the simultaneous appointment of inspectors was a valid exercise of powers by the Commissioner or not and whether it was a distinct power from the power vesting in Commission under Section 231. On this basis it was held that prior to the appointment of inspectors, an opportunity of hearing was a sine qua non and was a requirement of procedure which was given in the statute itself.

2. The question before this Court is slightly nuanced and reduced to its core, the central issue relates to the precise scope of Section 221 in juxtaposition to Section 256 which are to be read in conjunction with each other. However, as explicated, the proceedings under Section 221 inevitably lead to the proceedings for investigation of the affairs of the company under Section 256. Therefore, this begs the question whether the Commission can proceed to exercise its powers under Section 221 on a complaint filed by one of the shareholders of a company?

3. The answer to the above question lies in a holistic reading of the provisions of Section 256 relating to the investigation of the affairs of the company. A direct approach to investigate into the affairs of a company has been provided as a complete code in Section 256. This can be done by the Commission upon formation of an opinion on the application of the members holding not less than one tenth of the total voting power in a company having share capital. Thus, the only manner in which members can approach for investigation into the affairs of a company is on the application of a certain number of members having the voting power prescribed in clause (a) of sub-section (1) of Section 256 and in no other manner. In the present case, the complainant not having the requisite qualification merely filed a set of allegations to the Commission on which proceedings were started in exercise of powers conferred on the Commission under Section 221. Thus, what the complainant was trying to achieve was an investigation into the affairs of the company indirectly which he could not have achieved directly by applying under Section 256 to the Commission. This not only seriously prejudiced the rights of Daewoo to be dealt with in accordance with law but also offends the well-worn adage that what cannot be achieved directly cannot be permitted to be done indirectly. This is not to imply that the Commission does not have the authority to proceed in terms of Section 221 against a company. However, that has to be done on its own motion and by forming of opinion on the basis of material before the Commission and not upon extraneous considerations. The Commission has to take special care in all applications/ complaints filed to it which may be prompted by vested interests of a particular shareholder or a set of shareholders who do not have the qualification prescribed in Section 256. If the Commission were to proceed on every complaint filed to it by a shareholder against a company, it would seriously jeopardize the right of a company to carry on its business without fear of being hounded by inspectors appointed by the Commission on allegations made by shareholders which may not have any basis or support. Any effort to unravel the affairs of a company is a serious concern for that company and impedes the normal business activities of that company and should not be permitted to be done without defining the parameters of the powers of the Commission under the various provisions of the Act, 2017. The power of the Commission to proceed under Section 221 surely remains intact and may be exercised in an appropriate case. However, it must not be solely predicated on a complaint filed by a shareholder without any material evidence and in order to lead indirectly to the consequences spelt out in Section 256 as it is likely to have potentially wide implications. As stated above, there is no other basis for the Inspection Order except the complainant’s allegations. This is evident when the officer issuing the Inspection Order observed that the powers conferred under Section 221 were being exercised in order “to probe the matter further and in order to ensure the veracity of these allegations”. Quite clearly, the Inspection Order unleashed a roving inquiry into Daewoo’s affairs and thus impinged upon its rights to be treated in accordance with law. It is not the Commission’s case that, priorly, the Commission had reasons to believe, apart from the contents of the complaint, that there was something amiss regarding Daewoo’s affairs and that the complaint was the last straw which compelled and constrained the Commission into issuing the Inspection Order. The words ‘for reasons to be recorded in writing’ necessarily connotes that those reasons have to have provenance in a substantive review of the documents filed by a company by the Commission itself, on a fair and open-minded decision-making process.

4. The requirements of procedural fairness implicit in Section 221, demand in the particular context, that the Commission should not be influenced by extraneous and irrelevant considerations to produce procedurally defective decisions. This aspect becomes starker and more pronounced in the context of delegation argument raised by Daewoo. The argument raised in this Court calls in question the act of the Commission to delegate its powers on its officers and which are quasi-judicial in nature. Reference was made to SRO 1136(I)/2017 dated 30.10.2017 by which various statutory powers of the Commission have been delegated to its officers. This includes the power under Section 221; which by the notification, now vests in the officer who has issued the Inspection Order. The consequence is that instead of an informal and collegiate decision-making by members of the Commission, acts under Section 221 are now being performed at the whims of individual officers. This, in turn, conjures up myriad of situations in which the power may be abused and hence a corresponding need for it to be fenced by strict rules. The notification too has been brought under challenge but for the present this question is left unattended since the issue can be resolved on other grounds. Daewoo, may raise this challenge in future if the occasion presents itself. However, for the present, suffice to say that bad faith and improper motives are more likely to influence acts under Section 221 by an individual officer rather than the Commission sitting as a whole.

5. The proximity between the investigation and the ensuring decision and the requirements of procedural fairness has been alluded to in De Smith’s Judicial Review (7th Ed.) p.499 in the following words:

“The degree of proximity between the investigation in question and an act or decision directly adverse to the interests of the claimant may be important. Thus, a person conducting a preliminary investigation with a view to recommending or deciding whether a formal inquiry or hearing (which may lead to a binding and adverse decision) should take place is not normally under any obligation to comply with the rules of fairness. But such a person may be placed under such an obligation if the investigation is an integral and necessary part of a process which may terminate in action adverse to the interests of a person claiming to be heard before him.”

1. Decisions based upon irrelevant considerations (or failure to take account of relevant considerations) are reviewable for illegality. The same treatise provides that:

“If the exercise of a discretionary power has been influenced by considerations that cannot lawfully be taken into account, or by the disregard of relevant considerations required to be taken into account, a Court will normally hold that the power has not been validly exercised”. (p.305)

13. There is no doubt in my mind that the exercise of discretionary power by the officer issuing the Inspection Order was influenced by extraneous considerations which could not lawfully be taken into account. If the discretion is permitted to be exercised on this basis, then the decision-maker will be left adrift on a sea of factors without guidance. If wide unstructured discretion has to be rules out, reasons forming the basis of an Inspection Order must be based on a fair and open-minded assessment by the delegatee (of the Commission) of the material in his possession and not contained in a complaint or other correspondence. The words ‘for reasons to be recorded in writing’ do not refer to a mere reproduction of the contents of a letter by a shareholder. This will not meet the criteria mentioned in Section 221. If the officer acted on a complaint mechanically, then it will be deemed that there were no reasons to be recorded in writing. Those reasons must necessarily have nexus with the formation of an opinion by him which compelled the issuance of a notice. The opinion cannot be formed on mere allegations of a shareholder, the veracity of which is still to be proved.

1. Daewoo harbours legitimate expectation regarding due process of law and a corresponding duty of care on the part of SECP. The relevant standard of care has been given in Section 221 itself. Since the power has been delegated to an officer of SECP, there is no check on the power nor has objective criteria been laid down on the basis of which that officer may proceed on an information laid before him. This will, in turn, give rise to instances of invidious discrimination amongst different companies. There is no test which may be employed by the delegatee to distinguish between complaints or to choose one or the other. This will make the exercise of discretion purely whimsical and irrational. No material was placed on record to show if any reports have been compiled over the years by the

Commission on the frequency of exercise of such powers. This is all the more necessary to enable the Commission to retain its overarching role and to review the delegation if found to have degenerated into abuse of power by the delegatee. Doubtless, these are enormous powers and must be subject to checks and balances. Neither the Commission has laid down a framework within which proceedings may be set in motion on disclosure of voluntary information by a person, nor has it made it compulsory for such actions to be considered by the Commission periodically, in a meeting convened for the purpose. It is essential that there be control of the delegatee’s power by the Commission.

15. It is evident from what has been adumbrated above that the Commission (or its delegate in this case) did not have any material before it independent of the allegations made by the complainant for the valid exercise of powers under Section 221 of the Act, 2017.

1. In view of the above, this petition is allowed. The inspection order as well as the letter dated 26.02.2018 are hereby set aside.

This order shall be remitted to the Chairman, SECP by the Office who shall convene a meeting of the Commission, at the earliest, to review the cases in which powers under Section 221 of the Act have been exercised by the delegate. Also objective criteria shall be laid down by the Commission for the delegate to follow in all such matters.

(Y.A.) Petition allowed

PLJ 2020 Lahore 288

Present: Muhammad Qasim Khan, J.

ZAHID KAMAL--Petitioner

versus

EX-OFFICIO JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE, SHEIKHUPURA and 3 others--Respondents

W.P. No. 41737 of 2019, decided on 12.9.2019.

Criminal Procedure Code, (V of 1898)--

----Ss. 22-A & 22-B--Constitution of Pakistan, 1973, Art. 199--Installation of WAPDA earth pool inside water course--Electric shock two buffaloes were paralyzed--Filling of application for registration of case--Submission of report--Application was accepted with direction for registration of case--Challenge to--By careful perusal of impugned order it remains admitted position that before issuing direction for registration of case petitioner (proposed accused) was not heard--A wrong, if any, committed by an employee during performance of his official duties, unless mens rea and actus rea is established, launching criminal proceeding against him for such a wrong, is least permissible exercise, and in such circumstances course available to an aggrieved may be to file a suit for damages--Complainant will still be at liberty to file appropriate proceedings for recovery of damages against WAPDA/LESCO for alleged negligence committed by its officers and officials, which allegedly caused physical damage to buffaloes of complainant and establish his claim before relevant forums, and barrier of limitation, if any, shall not come in his way, if such proceedings are instituted by complainant within ninety days from passing of this order--Petition was disposed of. [Pp. 291 & 292] B, C & D

2006 YLR 1345, 2016 PCr.LJ 1398 Sindh, PLD 2019 Pesh. 154 and PLD 2016 SC 581 ref.

Electricity Act, 1910--

----S. 42--Responsibility of individuals--A company may be liable for a wrong attributed to it, but once an act is committed which constitutes an offence which is punishable then individuals may be held responsible and not company. [P. 291] A

PLD 1961 (W.P.) Lahore 875 ref.

Mr. Muhammad Zakir Hussain, Advocate for Petitioner.

RaiAshfaq Ahmad Kharral, Advocate for Respondent.

Malik Abdul Aziz Awan, Additional Advocate General.

Date of hearing: 12.9.2019.

Order

The petitioner (Sub-Divisional Officer, Civil Lines Division, Sheikhupura) has assailed the order dated 25.06.2019 passed by learned Ex-officio Justice of Peace, whereby, on an application filed by Ghulam Rabbani-Respondent No. 4 under Section 22-A/22-B, Cr.P.C, against Lineman, Line Superintendent/SDO, the respondent SHO police station Saddar, Sheikhupura, has been directed to record his version and proceed in accordance with law.

1. The facts in brief are that Respondent No. 4 earlier filed a complaint before the SHO police station Saddar, Sheikhupura, precisely with the allegation that he (the complainant) has established haveli for cattle, nearby has made a pond for them and at about 50/60 feet away transformer of a tube-well of Haji Fazal Ahmad has been installed on a pole, the earth-pole whereof was planted by concerned WAPDA officials inside the watercourse and supporting wires of the said pole had also been fixed right in the same watercourse. On 04.06.2019 at 12.30 noon, two buffaloes of the complainant were sitting inside the pond, when due to negligence of WAPDA employees current of electricity passed through the watercourse thereby both animals were inflicted severe electronic shock, and resultantly both were hindquarters paralyzed and became unable to walk. According to the complainant this was due to negligence of LESCO officials, as such, a direction for registration of a criminal case was sought, and said direction was ultimately issued by learned Ex-officio Justice of Peace through the order, impugned herein.

2. I have considered the respective arguments of learned counsel for the parties and examined the file.

3. It is matter of record that the learned Ex-officio Justice of Peace/Additional Sessions Judge, Sheikhupura had requisitioned a report from the police and said report is part of instant file, wherein, the S.P (Investigation) had observed that previous year four buffalos and recent year two buffalos of the complainant had been injured causing colossal loss to him, as such, he requested the Court to issue a direction to WAPDA to constitute a technical team for site inspection to know whether the electricity had passed through 11000-KV pole or damage had been caused because of water motor and if the electric shock had resulted because of electricity pole then complainant be compensated.

4. There is no second opinion on the point that to constitute a criminal offence, existence of mens rea and actus reus are two essentials, as most crimes consist of two broad elements mens rea and actus reus. Mens rea means to have “a guilty mind.” The rationale behind the rule is that it is wrong for society to punish those who innocently cause harm. Actusreus literally means “guilty act,” and generally refers to an overt act in furtherance of a crime. Requiring an overt act as part of a crime means that society has chosen to punish only bad deeds, not bad thoughts. Specific intent and general intent are other terms used to describe a person’s state of mind. General intent means the intent to do something that the law prohibits; the prosecution does not need to establish that the accused actually intended the precise result. Specific intent designates a special element above and beyond the actus reus, of the crime, and generally signifies an intentional or knowing state of mind. For example, in the case of theft, the prosecution must establish the accused’s intent to steal the property.

6. Keeping the above background of the events as well as legal position in mind, I have perused Section 42 of the Electricity Act, 1910 and observe that normally a company may be liable for a wrong attributed to it, but once an act is committed which constitutes an offence which is punishable then individuals may be held responsible and not the company. This provision of law came under discussion before this Court in the case “Chiragh Ali Chishti v. Abdul Ghaffar” (PLD 1961 (W.P) Lahore 875), wherein, three complaints were filed against individuals and not the licensee. The said ratio decidendi is not applicable to the facts and circumstances of the instant case, for the reason that in the cited judgment complaint had been filed specifically under Section 42 of the Electricity Act, 1910 and in that specific perspective it was held that “It will be seen that as a legal proposition it is well established that a company or corporation may be prosecuted and held criminally liable, except in the case of those offences which cannot be committed vicariously or for which the punishment must of necessity be imprisonment, transportation or death …………….….”. Therefore, in my view the above cited judgment is of no benefit to the petitioner. However, by careful perusal of impugned order it remains admitted position that before issuing the direction for registration of case the petitioner (proposed accused) was not heard and this practice is against the decision rendered by learned Division Bench of Peshawar High Court in “Syed Abdul Hameed v. Mian Izhar Ahmad” (PLD 2019 Peshawar 154), wherein, with specific reference to the case “Younas Abbas and others v. Additional Sessions Judze, Chakwal and others” (PLD 2016 SC 581), held that “It is therefore, observed that the Justice of Peace before passing any order for the registration of the FIR shall put the other party on notice against whom registration of FIR is asked for.” Similarly, a learned Division Bench of this Court in the case “Mian Touseef v. District Police Officer” (2017 P.Cr.L.J. 1140), held that “………. the concerned Justice of Peace, must provide an opportunity of hearing to the proposed accused before giving a direction for registration of the FIR.” The impugned order, therefore, does not fulfill the above requirements settled by this Court.

7. In addition to the above, as discussed above in detail, against a wrong, if any, committed by an employee during the performance of his official duties, unless mens rea and actus rea is established, launching criminal proceeding against him for such a wrong, is least permissible exercise, and in such circumstances the course available to an aggrieved may be to file a suit for damages. Reference is made to the case “Rafiullah v. The State” (2006 YLR 1345 Pesh) and “Tabish Gauhar v. The State (2016 P.Cr.L.J. 1398 Sindh). The later judgment has been rendered in a case under Section 309, PPC, where a person died after receiving electric shocks from the broken electric wires lying on the road and CEO of KESC was implicated and the Hon’ble Sindh High Court, quashed the proceedings while holding that:

“For the reasons discussed supra, I am of the considered view that there is no probability of the applicant being convicted for the alleged offence even if all PWs are examined during the trial, as the complainant under the ill-advice has lodged FIR against the applicant instead of filing a suit for damages, with regard to the act of negligence allegedly committed by the applicant or other officials of KESC/KE. Consequently, instant criminal miscellaneous application stands allowed and the proceedings emanated from FIR No. 163 of 2010, under Section 319, P.P. C, are hereby quashed.”

8. For what has been discussed above, the impugned order passed by learned Ex-officio Justice of Peace is not sustainable and is set-aside. However, as held in the case “Tabish Gauhar v. The State” (2016 P.Cr.L.J. 1398 Sindh), the complainant will still be at liberty to file appropriate proceedings for recovery of damages against WAPDA/LESCO for the alleged negligence committed by its officers and officials, which allegedly caused physical damage to the buffaloes of the complainant and establish his claim before the relevant forums, and the barrier of limitation, if any, shall not come in his way, if such proceedings are instituted by the complainant within ninety days from passing of this order. Disposed of.

(Y.A.) Petition disposed of

PLJ 2020 Lahore 292

Present: Asim Hafeez, J.

NATIONAL POWER PARKS MANAGEMENT COMPANY (PVT.) LTD.--Petitioner

versus

FEDERAL BOARD OF REVENUE, etc.--Respondents

W.P. No. 12283 of 2020, heard on 9.3.2020.

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

----Ss. 127, 137, 147(6), 153 & 210--Filling of estimate--Computation of advance income tax payments--Rejected--Issuance of notices for recovery of payable advance tax--Jurisdiction--Maintainability--Alternate remedy--Statutory obligation--Advance tax liability--Determination of liability of tax--Challenge to--Respondent No. 3, claimed to be duly authorized under Section 210 of Ordinance, 2001, rejected estimate(s) upon assumption of jurisdiction in terms of first and second proviso to sub-section (6) of Section 147 of Ordinance, 2001, added through Act, 2018, which provisos hold critical position in context of subject matter controversy--Assumption of jurisdiction is in accordance with mandate of provisos to sub-section (6) of Section 147 of Ordinance, 2001--Submissions made by counsel to object to assumption of jurisdiction are misconceived, which if adverted to, would have effect of making Section 147 in general and provisos in particular redundant and ineffective--Argument that sub-section (4) and sub-section (6) of Section 147, ibid, are independent in its operations is misconceived--Applicability of sub-section (4) of Section 147, while making estimate(s) is significant, which is evident from perusal of second proviso thereto, whereby Commissioner is empowered to make directions for payment of tax in accordance with formula prescribed--Argument regarding absence or want of jurisdiction, to examine and reject estimate(s) furnished is without any force and same is repelled--This Court is not inclined to exercise jurisdiction qua any matter touching exercise of jurisdiction--Question of authorization of Respondent No. 3 to assume jurisdiction in terms of sub-section (6) of Section 147 of Ordinance, 2001 can be raised before appellate forum--I am not convinced with submissions that no adequate opportunity was afforded, record speaks for itself--This Court is not inclined to comment of factum of deductibility of alleged tax credit(s), which issues are sub-judice and any comment, in respect thereof, would prejudice case of parties--Petition was dismissed.

[Pp. 298, 299, 300, 301, 302 & 310] A, B, C, D, E, F & G

M/s. Munawar-us-Salam and Shoaib Rashid, Advocates for Petitioner.

Mr. Zahid Javed Butt, Assistant Attorney General for Respondents.

Mr. Muhammad Yahya Johar, Advocate for Respondent.

Date of hearing: 9.3.2020.

Judgment

The petitioner, through this constitutional petition, seeks declaration of invalidity against orders dated 30.01.2020 and 06.02.2020, whereby the estimate(s) furnished by the petitioner regarding computation of advance income tax payments, for the 1st and 2nd quarters of Tax year 2020 (‘tax year’), in terms of Section 147 of the Income Tax Ordinance, 2001 (“Ordinance, 2001”), were rejected and notices under Section 137 of Ordinance, 2001 for recovery of payable advance tax issued.

The respondents are duly represented and with concurrence, this case is treated as PAKKA CASE and decided accordingly.

1. The elephant in the room is the jurisdictional challenge thrown to the existence and assumption of jurisdiction by the Respondent No. 3, who allegedly proceeded to reject the estimate(s) furnished with regard to computation of advance tax payments. Conversely, the petition is resisted, on behalf of the respondents, on the point of availability of an alternate remedy under Section 127 of Ordinance, besides submissions on merits.

2. Briefly the facts, necessary for adjudication of the lis at hand, are that the petitioner, whose income was chargeable to tax, furnished estimate of advance tax amounts, computed for the 1st quarter of tax year, wherein alleged tax credit(s) amounting to Rs. 561,565,000/-, allegedly accrued under Section 65D of Ordinance, 2001 – was deducted from the amounts computed. The estimate furnished was rejected and notices under Section 137 of Ordinance, 2001 for recovery of the amounts, tabulated in accordance with sub-section (4) of Section 147 of Ordinance, 2001 were issued. Aggrieved, the petitioner invoked constitutional jurisdiction bearing W.P No. 64399/2019, which was disposed of with direction to decide the matter afresh. The estimate furnished, for 1st quarter, was again rejected vide order dated 30.01.2020. During the interregnum period, deemed assessment order regarding return of income for the Tax year 2018 was amended vide order dated 25.10.2019, in terms of Section 122(5A) of Ordinance, 2001, whereby claim of tax credit(s) was dismissed. The petitioner unsuccessfully impugned order dated 25.10.2019 before the Commissioner Inland Revenue (Appeals). Thereafter, second appeal was filed before learned Appellate Tribunal, which is claimed to be pending adjudication. In the meanwhile, the obligation to pay advance tax payment for 2nd quarter accrued. The petitioner again furnished estimate, computing advance tax payments, wherein amounts of Rs. 1,047,271,000/- was deducted on account of claimable tax credit(s) under Section 65D, ibid. The estimate for 2nd quarter was rejected on 06.02.2020 and recovery notices were issued under Section 137 of Ordinance, 2001. The rejection of estimate(s) regarding advance tax payments was primarily on account of alleged deductibility/adjustments of tax credit(s), allowance and admissibility whereof is vehemently disputed by the department. Hence, this petition. It is noted that deemed assessment order for the Tax year 2019 was amended vide order dated 06.03.2020, in exercise of powers under Section 122 (5A) of Ordinance, 2001, whereby claim of tax credit under Section 65D was again rejected.

3. Learned counsel for the petitioner submits that Respondent No. 3 (Officer Inland Revenue) lacked jurisdiction to question the computation and authenticity of estimate(s) furnished, regarding computation of advance tax payments, which estimate(s) cannot be questioned by the department. Alternately submits that in terms of first and second provisos to sub-section (6) of Section 147 of Ordinance, 2001, the Commissioner has limited power to reject the estimate(s) furnished, which power can only be exercised subject to the existence of conditions prescribed, none of which was available when authority was purportedly exercised. Adds that no claim with respect to advance tax payments, allegedly overdue, can be raised till conclusive determination of income tax liability for the relevant tax year. Per learned counsel, alleged payable advance tax, subject to any tax is found payable upon carrying assessments, can be recovered along with penalty, as default surcharge, under Section 205 of Ordinance, 2001. To support these submissions, he referred to the judgments reported as “, Commissioner of Income Tax v. M/s. Habib Sugar Mills Ltd.” (1993 PTD 343), “Call Tell and another v. Federation of Pakistan and others” (2005 PTD 833), “Lone Cold Storage, Lahore v. Revenue Officers, Lahore Electric Power Co. and others”(2010 PTD 2502), “Karachi Port Trust, Karachi v. Commissioner Inland Revenue, Karachi” (2011 PTD 1996), Messrs Lahore Polypropylene Industries (Pvt.) Ltd. and others v. Federation of Pakistan and others (2012 PTD 1003), “Sui Northern Gas Pipelines Limited (SNGPL) v. Federation of Pakistan and others” (2017 PTD 1774), “Fauji Fertilizer Company Ltd. v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 3 others” (2018 PTD 719). With respect to the objection regarding maintainability of instant petition, learned counsel emphasized that remedy of appeal is not available to the petitioner under Section 127 of Ordinance, 2001, against orders impugned through this petition.

Reference, in this behalf, is made to the case reported as Chairman, Central Board of Revenue, Islamabad and 3 others v. Messrs Pak-Saudi Fertilizer Ltd. (2000 PTD 3748). Learned counsel emphasized petitioner’s entitlement to deduct/adjust claimed tax credit(s), which became admissible once return of income for the preceding tax year was furnished, to be construed as deemed assessment; and unless reversed or altered, the declarations made therein are valid and intact. Learned counsel referred to Section 53 of the erstwhile Income Tax Ordinance, 1979 (Repealed Ordinance), which was analogous to Section 147 of Ordinance, 2001, to emphasize point of absence of jurisdiction to question estimate(s) furnished regarding advance tax payments. Adds that claims regarding tax credit(s) are still pending adjudication before learned Appellate Tribunal, hence disallowance at this stage constitutes an illegality. Per learned counsel, estimate(s) under reference were rejected in the garb of principle of res-judicata, without appreciating that said principle has no application till the decisions referred attain finality in law. Referred to judgments reported as “Commissioner of Income Tax, North Zone (West Pakistan), Lahore v. Crescent Textile Mills Ltd., Lahore” (1974 (2) Tax 212), “Commissioner of Income Tax, Central Zone ‘B’ v. Messrs Farrokh Chemical Industries” (1992 PTD 523), “Central Board of Revenue and others v. Chanda Motors” (1993 SCMR 39), “Messrs MICRO Pak (Pvt.) Ltd., Lahore v. Income Tax Appellate Tribunal, Lahore and 2 others” (2001 PTD 1180), “Inspecting Additional Commissioner of Income Tax and others v. Messrs MICRO Pak (Pvt.) Limited and others” (2002 PTD 877), “Messrs Engineering Consortium (Pvt.) Limited, Karachi v. I.T.O. Co., Circle Central Zone-C, Karachi” (2006 PTD 333), “Messrs Riaz Bottlers (Pvt.) Limited, Lahore v. Commissioner of Income Tax, Companies Zone-I, Lahore” (2008 PTD 877) “BP Pakistan Exploration and Production Inc., Karachi v. Additional Commissioner, Inland Revenue-B Enforcement and Collection Division-I, Karachi and another” (2011 PTD 647) and “H.M. Extraction Ghee and Oil Industries (Pvt.) Ltd. v. Federal Board of Revenue” (2019 PTCL 533). Lastly argued that sub-sections (4) and (6) of Section 147 of Ordinance, 2001 are independent provisions for the purposes of computation and estimation of advance tax liability.

1. Learned counsel appearing for respondent department seeks dismissal of instant petition in wake of availability of remedy of appeal under Section 127 of Ordinance, 2001, and reference, in this behalf, is made to the cases reported as “Wealth Tax Officer and another v. Shaukat Afzal and 4 others” (1993 SCMR 1810) and “Commissioner of Income Tax, Companies-II and another v. Hamdard Dawak Hana (Waqf), Karachi” (PLD 1992 SC 847). Per learned counsel, assumption and exercise of jurisdiction by Respondent No. 3 – who is duly authorized and competent – was in accordance with the first and second provisos to sub-section (6) of Section 147 of Ordinance, 2001, added through Finance Act, 2018 (XXX of 2018) dated 22.05.2018 (“Act, 2018). Learned counsel emphasized, that claim of tax credit(s) under Section 65D of Ordinance, 2001, was inadmissible and only such tax credit(s) are adjustable against computed advance tax, as allowed under Section 168 of Ordinance, 2001, reference is made to item (D) of computation formula prescribed for tabulation of advance tax under sub-section (4) of Section 147 of Ordinance, 2001. Submits that claim of tax credit(s) was otherwise rejected, while amending deemed assessments for the Tax years 2018 and 2019, vide orders dated 25.10.2019 and 06.03.2020. Learned counsel referred to the case of “H.M. Extraction Ghee and Oil Industries (Pvt.) Ltd. and another v. Federal Board of Revenue and another” (2019 SCMR 108) to highlight the adjustment mechanism with respect to claim of exemption(s) and tax credit(s). Further submits, that judgments referred are distinguishable in view of amendments introduced through Act, 2018.

2. Arguments heard. Available record perused.

3. The objection regarding maintainability has been confronted on two grounds, firstly on jurisdictional plane; averring that Respondent No. 3 lacked jurisdiction to review and reject estimate(s) furnished, regarding computation of advance tax payments and to proceed to recover allegedly payable advance tax before conclusive determination of income tax liability for the respective tax year. And secondly that no remedy of appeal is available under Section 127 of Ordinance, 2001, in view of the nature of the orders impugned here.

4. The question of alternate remedy would pale into insignificance if jurisdictional challenge succeeds, in which eventuality the very act of assumption of jurisdiction would be of no legal effect. It is therefore appropriate to decide the jurisdictional objection first. It is significant to note that petitioner has not questioned the vires, constitutionality or legality of the first and second provisos to sub-section (6) of Section 147 of Ordinance, 2001 – added through the Act, 2018.

5. There is no dispute regarding the statutory obligation to pay advance tax for requisite tax year in accordance with Section 147 of the Ordinance, 2001, which obligation was allegedly discharged upon furnishing computed advance tax liability for the 1st quarter vide document dated 27.09.2019 -followed by explanatory letters dated 11.10.2019 and 20.01.2020. The contents of the document dated 27.09.2019 manifest that advance tax liability was worked out under sub-section (4) Section 147 of Ordinance, 2001. The petitioner, while computing the liability proceeded to effect deduction of Rs. 561,565,000/-for 1st quarter on the basis of alleged claim of tax credit(s), claimed under Section 65D of Ordinance, 2001. It was alleged through document dated 11.10.2019 that advance tax liability of Rs. 483,282,000/-, computed under sub-section (4) of Section 147, ibid, was not payable in lieu of deduction of claim of tax credit(s), and in fact excess tax of Rs. 82,283,641 was paid. Likewise, excess advance tax payment was claimed by the petitioner while computing advance tax liability for 2nd quarter of the tax year, wherein deduction of Rs. 1,047,271,000/-was made on the basis of alleged tax credit(s), claimed to have accrued in terms of Section 65D, ibid. The estimate for 2nd quarter was furnished through document dated 31.12.2019. Respondent No. 3 rejected the estimate(s) furnished on the premise that estimate(s) were invalid, being contrary to computation formula provided under sub-section (4) of Section 147 of Ordinance, 2001 and otherwise no deductions could be effected on the basis of alleged tax credit(s), against computed liability of advance tax, as claimed tax credit(s) was never allowed in terms of Section 168 of Ordinance, 2001; hence, not available for any alleged adjustments against advance tax liability. Manifestly, Respondent No. 3, claimed to be duly authorized under Section 210 of the Ordinance, 2001, rejected the estimate(s) upon assumption of jurisdiction in terms of first and second proviso to sub-section (6) of Section 147 of Ordinance, 2001, added through Act, 2018, which provisos hold critical position in the context of subject matter controversy. It is expedient to reproduce sub-section (6) of Section 147, ibid, and provisos thereto, for ease of reference, which read as:

“(6) If any taxpayer who is required to make payment of advance tax under sub-section (1) estimates at any time before the last instalment is due, that the tax payable by him for the relevant tax year is likely to be less than the amount he is required to pay under sub-section (1), the taxpayer may furnish to the Commissioner an estimate of the amount of the tax payable by him, and thereafter pay such estimated amount, as reduced by the amount, if any, already paid under sub-section (1), in equal instalments on such dates as have not expired;

\Provided that an estimate of the amount of tax payable shall contain turnover for the completed quarters of the relevant tax year, estimated turnover of the remaining quarters along with reasons for any decline in estimated turnover, documentary evidence of estimated expenses or deductions which may result in lower payment of advance tax and the computation of the estimated taxable income of the relevant tax year:

\Provided further that where the Commissioner is not satisfied with the documentary evidence provided or where an estimate of the amount of tax payable is not accompanied by details mentioned in the first proviso, the Commissioner may reject the estimate after providing an opportunity of being heard to the taxpayer and the taxpayer shall pay advance tax according to the formula contained in sub-section (4).

[\ added through Act, 2018]

[Emphasis supplied]

10. While comparing sub-section (6) of Section 147, with and without the provisos, fundamental departure has been made, when contextualized in the context of jurisdictional objection. Out with the old, in with the new. It is evident that, subject to the conditions prescribed, jurisdiction to reject the documentary evidence furnished has been extended, which was lacking before the introduction of provisos, ibid. Even no such authority was extended under Section 53 of the Repealed Ordinance, largely referred by learned counsel for the petitioner to emphasize jurisdictional objection. In terms of first proviso, certain parameters were laid down, to be adhered to while furnishing estimate(s) thereunder, which inter-alia included provisioning of documentary evidence relating to alleged deductions, resulted in reduced payment of advance tax. Documentary evidence by way of estimation was accordingly provided by the petitioner, tabulating the advance tax liability and effecting deduction(s) on the basis of tax credit(s) – claimed under Section 65D of Ordinance, 2001. The expression ‘documentary evidence’ calls for no explanation for understanding its meaning, scope and extent. Officer Inland Revenue, acting in terms of second proviso to sub-section (6) of Section 147, ibid, proceeded to review the documentary evidence furnished and rejected the same, upon being unsatisfied. Upon rejection of the estimate(s) advance tax payable in terms of the computation formula was claimed. The assumption of jurisdiction is in accordance with the mandate of the provisos to sub-section (6) of Section 147 of Ordinance, 2001. The significance of the provisos, while interpreting sub-section (6) of Section 147, ibid, cannot be undermined or ignored, which provisos in fact, control and regulate the procedure provided under sub-section (6) of Section 147, ibid, for furnishing estimate(s) thereunder. Their Lordships, while dilating upon the canons of statutory interpretation in the context of ‘proviso’, in the case of Messrs East And West Steamship Company v. Pakistan, through the Secretary to the Government of Pakistan, Ministry of Commerce, Karachi (PLD 1958 Supreme Court 41, at page 72), observed that:

“Moreover, one of the plainest rules of statutory interpretation is that a proviso is to be regarded as something which excepts a particular case from a general principle. The effect of a proviso is to except something out of a preceding portion of the enactment or to qualify something enacted therein which but for proviso would be within it. As is said in Caries on Statute Law:

“The natural presupposition is that, but for the proviso, the enacting part of the section would have included in it the subject-matter of the proviso”

11. In nutshell, submissions made by learned counsel to object to assumption of jurisdiction are misconceived, which if adverted to, would have the effect of making Section 147 in general and provisos in particular redundant and ineffective. Their Lordships while interpreting the effect of Section 15-B of Income Tax Act 1922, in the case of Muhammadi Steamship Co. Ltd v. The Commissioner of Income-Tax (Central) Karachi (1966 PTD 664), held that “it is a well-established rule of interpretation of statutes that no words in a statute are to be treated as surplusage or redundant”. Likewise, no redundancy or surplusage can be attributed to the provisos to sub-section (6) of Section 147 of Ordinance, 2001. The provisos have to be given full effect, without an exception. Apex Court in the case of Messrs Hirjina and Co. (Pakistan) Ltd., Karachi v. Commissioner of Sales Tax Central, Karachi (1971 SCMR 128), reiterated time-tested principle of interpreting taxing enactments, relevant portion is reproduced hereunder as:

“while interpreting the taxing statute the Courts must look to the words of the statute and interpret it in the light of what is clearly expressed and not imply anything which is not expressed and provisions to support assumed deficiencies.”

[Emphasis supplied]

1. Without getting into nitty-gritty of factual details, bordering the domain of exercise of jurisdiction conferred, it is evident that jurisdiction is available, but exercisable subject to the conditions prescribed. The matter of exercise of jurisdiction is another specie. There is conspicuous distinction between the existence of jurisdiction and exercise of jurisdiction, as former implies grant or conferment of authority to adjudicate and later manifest the manner of application/ execution thereof. Their Lordships, in the case of State v. Zia-ur-Rehman and others (PLD 1973 Supreme Court 49) while classifying the expressions ‘jurisdiction’ and ‘judicial power’ observed as follows;

“It expresses the concept of the particular res or subject-matter over which judicial power is to be exercised and the manner of its exercise. Jurisdiction, therefore, a right to adjudicate concerning particular subject-matter in a given case, as also the authority to exercise in a particular manner the judicial power vested in the Court”.

13. The argument that sub-section (4) and sub-section (6) of Section 147, ibid, are independent in its operations is misconceived, which, if adverted to would render sub-section (4), ibid, redundant. The liability to pay advance tax has to be computed in accordance with sub-section (4) of Section 147, for each quarter of the respective tax year, which quarterly computed liability for the tax year would conjointly constitute an obligation to pay advance tax for the tax year in terms of sub-section (1) of Section 147, ibid. There is no escape or avoidance from the computation formula prescribed under sub-section (4) of Section 147, ibid. For the purposes of clarity, it is expedient to reproduce sub-section (4) of Section 147, which reads as:

(4) “Where the taxpayer is an association of persons or a company, the amount of advance tax due for a quarter shall be computed according to the following formula:

A is the taxpayer’s turnover for the quarter provided that where the taxpayer fails to provide turnover or the turnover for the quarter is not known, it shall be taken to be one-fourth of one hundred and ten percent of the turnover of the latest tax year for which a return has been filed;

B is the tax assessed to the taxpayer for the latest tax year.

[Explanation.--For removal of doubt it is clarified that tax assessed includes tax under Sections 113 and 113C.]

C is the taxpayer’s turnover for the latest tax year; and

D is the tax paid in the quarter for which a tax credit is allowed under Section 168.

[Emphasis supplied]

14. The significance of item (D) cannot be undermined, while allowing deductions, as evident from sub-section (4) of Section 147, ibid. It is not the case of the petitioner that tax credit(s) allegedly deducted from the liability computed were allowed in terms of Section 168 of Ordinance, 2001. Since, this Court is not touching the issues regarding legality or admissibility of said tax credit(s), therefore exercises restraint to make any comment in this behalf. Coming back to the scope of sub-section (6) of Section 147, ibid, it is evident that it provides an option to the taxpayer to furnish estimate(s) of the amount of the tax payable, if upon estimation at any time before the last installment is due, that tax payable for the relevant tax year is likely to be less than the amount taxpayer is required to pay under sub-section (1) of Section 147, ibid, the taxpayer shall pay the estimated amounts, as reduced by the amounts, if any, already paid under sub-section (1) of Section 147, ibid. In essence, the petitioner while submitting estimate(s) claimed – without prejudice to the computation formula – that amounts payable under sub-section (1) of Section 147, ibid, stood reduced allegedly in wake of claimed tax credit(s), by effecting deductions from the computed liability of advance tax payments. The applicability of sub-section (4) of Section 147, while making estimate(s) is significant, which is evident from the perusal of second proviso thereto, whereby the Commissioner is empowered to make directions for payment of tax in accordance with the formula prescribed. Until computation of advance tax liability has taken place in accordance with the statutory mandate, there is no question of alleged estimation of tax payable for the relevant year and consequent adjustments therefrom, for the purposes of sub-section (6) of Section 147, ibid. The computation appears to be condition precedent for undertaking estimation under sub-section (6) of Section 147, ibid. The argument is inherently flawed, which, for instance, implies that petitioner or a taxpayer, as the case may be, may proceed to claim and deducts alleged tax credit(s) from computed advance tax liability – notwithstanding same are not allowed under Section 168 of Ordinance, 2001, in terms of item D of sub-section (4) of Section 147 of Ordinance, 2001. Such a construction, if accepted, would implies that every eligible taxpayer, required to pay the advance tax, may unilaterally claim tax credit(s), proceed to effect adjustments and pay reduced advance tax payments. The submissions are contrary to the estimates submitted by the petitioner.

15. In light of aforesaid, the argument regarding absence or want of jurisdiction, to examine and reject the estimate(s) furnished is without any force and same is repelled. The judgments referred by learned counsel for the petitioner and reasonings adopted therein, wherein, commonly, it was held that Taxation officer/authorities have no jurisdiction to question the estimate(s) furnished with regard to the computation of advance tax payments, are distinguishable and do not apply to the controversy at hand. In fact, no such authority or jurisdiction was available or conferred to review and reject estimate(s), either under Section 53 of the Repealed Ordinance or Section 147 of Ordinance, 2001, as it existed before the amendments introduced. None of the judgments referred have interpreted Section 147 of the Ordinance, 2001, after the amendments are introduced through the Act, 2018.

1. Learned counsel has also argued that act of issuance of impugned recovery notices, Section 137 of Ordinance, 2001 is devoid of jurisdiction and no recovery could be effected with respect to alleged due advance tax liability, till conclusive determination of liability of income tax for the relevant tax year, which determination has to be carried out in accordance with the assessment mechanism provided in Part-II of Chapter X of Ordinance, 2001. An ancillary submission is that any failure, if any attributable to the petitioner taxpayer, can be effectively remedied by resorting to imposition of levy of default surcharge under sub-section (1B) of Section 205 of Ordinance, 2001, only after assessment and determination of income tax liability. The argument loses significance when examined in the context of jurisdiction extended in terms of provisos to sub-section (6) of Section 147 of Ordinance, 2001, whereby jurisdiction to examine the documentary evidence and reject the same, upon being unsatisfied has been provided, which implies that the Officer/Taxation authorities are competent to pass orders, determining payable advance tax in accordance with computation formula prescribed, and any failure thereof is enforceable alike an assessment order, in terms of sub-section (7) of Section 147, ibid. The question of existence of jurisdiction has been discussed in earlier part of the judgment and need no elaboration. The mechanism for computation of advance tax payments, due dates for such payments – timelines are prescribed under sub-Section 5(A) of Section 147, ibid for the payment of advance tax payments for each quarter of respective tax year -and consequences of failure are provided under Section 147 of Ordinance, 2001. The payable advance tax, treated as tax due under an assessment order, is recoverable under Section 137 of Ordinance, 2001. It is expedient to reproduce sub-section (7) of Section 147 and Section 137 of Ordinance, 2001, for facility, which read as:

Sub-section (7) of Section 147; The provisions of this Ordinance shall apply to any advance tax due under this section as if the amount due were tax due under an assessment order.”

“137. Due date for payment of tax.--(1) The tax payable by a taxpayer on the taxable income of the taxpayer including the tax payable under Section 113 or 113A for a tax year shall be due on the due date for furnishing the taxpayer’s return of income for that year.

(2) Where any tax is payable under an assessment order or an amended assessment order or any other order issued by the Commissioner under this Ordinance, a notice shall be served upon the taxpayer in the prescribed form specifying the amount payable and thereupon the sum so specified shall be paid within thirty days from the date of service of the notice;”

Provided that the due date for payment of tax payable under sub-section (7) of Section 147 shall be the date specified in sub-section (5) or sub-section (5A) or first proviso to sub-section (5B) of Section 147.

[Emphasis supplied]

1. In terms of sub-section (7) of Section 147 of Ordinance, 2001 – deeming clause – the provisions of the Ordinance are made applicable to advance tax payments due under Section 147 of the Ordinance – which makes recovery of tax due, recoverable under Section 137 of Ordinance, 2001. There is nothing in Section 147 of the Ordinance, 2001, to defer recovery of due advance tax till final determination of tax liability for the tax year and any construction contrary thereto would otherwise threaten the existence of deeming provision of law. The scope and significance of a deeming clause has been illustrated in the case of Mehreen Zaib-un Nisa vs. Land Commissioner (PLD 1975 SC 397), wherein it was observed as follows:

“when a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did exist at the relevant time but by a legal fiction we are assume as if it did exist”

It is also apt to refer to the relevant portions from the case of Elahi Cotton Mills Limited v. Federation of Pakistan (PLD 1997 Supreme Court 582, at page 677) to understand the context, which reads as:

“(xvii) That generally the effect of a deeming provision in a taxing statute is that it brings within the tax net an amount which ordinarily would not have been treated as an income. In other words, it brings within the net of chargeability income not actually accrued but which supposedly to have accrued notionally.

(xviii) That when a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.

(xix) That where a person is deemed to be something the only meaning possible is that whereas he is not in reality that something, the Act required him to be treated as he were with all inevitable corollaries of that state of affairs.

(xx) That the legal fictions are limited for a definite purpose, they cannot be extended beyond the purpose for which they are created.”

1. The expression “assessment order” in sub-section (7) of Section 147 of Ordinance, 2001 has to be construed and interpreted exclusively in the context of Section 147 and any contrary construction, otherwise subjecting it to or establishing any purported proximity with the nature of the assessment order, envisaged under Section 120 of Ordinance, 2001, would render provisos to sub-section (6) of Section 147, sub-section (5A), sub-section (7) of Section 147 and sub-section (2) – including proviso thereto, added through the Finance Act, 2018 -of Section 137 of Ordinance, 2001, redundant, superfluous and ineffective, which is undesirable and unwarranted, especially in the absence of any incidence of legislative incompetence or purported violation of any Fundamental right. The scheme of collection of advance tax payable, timing of its collection and provisioning of mechanism for effecting recovery thereof, which amount is due, cannot be catalogued with the realm of chargeability or levy, which distinction is crucial and need to be acknowledged for the survival of Section 147 of Ordinance, 2001 and harmonious applicability thereof. The purpose and object of Section 147-ibid, to allow collection of advance tax and effect recovery thereof, can be enforced without offending the mechanism of levy or chargeability of tax and changing the provisional character of advance tax, made recoverable accordingly. Guidance, in this behalf, is solicited from the ratio of the decision in the case of Indus Jute Mills Ltd. v. Federation of Pakistan (2009 PTD 1473), wherein his Lordship Sh. Azmat Saeed, J, as his lordship then was, while interpreting Section 235 of Ordinance, 2001, observed as follows:

“16. However, before proceeding further it would be appropriate to draw a distinction between the collection of tax and its levy or changeability. Similarly, the process of assessment of liability also must be distinguished. The distinction between the subject matter of the tax and the standard whereby it was measured must also be borne in mind. In the case of Whiteny v. Inland Revenue Commissioners reported as AIR 1926 AC 37 it has been held at page 52 as follows:--

... “Now there are three stages in the imposition of a tax, there is the declaration of liability, that is the part of the statute which determines what persons in respect of what property are liable. Next, there is the assessment. Liability does not depend on assessment. That ex-hypothesis has already been fixed. But assessment particularizes the exact sum which a person liable has to pay. Lastly, come the methods of recovery, if the person taxed does not voluntarily pay.”

1. In the case reported as Elahi Cotton Mills Ltd. PLD 1997 SC 582, the Hon’ble Supreme Court held as under:--

“(xxvii) That there is a clear distinction between the subject matter of a tax and the standard by which the amount of tax is measured keeping in view the practical difficulties which are encountered by the Revenue to locate the persons and to collect the tax due in certain trades, if the

Legislature in its wisdom thought that it would facilitate the collection of tax due from specified traders on a presumptive basis, the same is not violative of the Fundamental Rights relating to equality”....

1. The aforesaid clearly identifies three stages of imposition of tax, i.e., ‘Declaration of Liability, Assessment and Recovery. However, the aforesaid three stages need not necessarily occur in any particular order. More importantly, the recovery of tax whether directly from the assessee or indirectly through collection from expenditure or deduction from receipts, as the case may be, does not amount to assessment of tax, nor creates any liability to pay the said amount. Advance tax is merely a provisional payment. Furthermore, the mode of recovery of tax is not the sole determining factor in ascertaining the subject matter of tax”.

[Emphasis supplied]

1. In the case of Commissioner of Inland Revenue v. Messrs PEPCO Pakistan (2015 PTD 863), Division Bench of this Court elucidated the rational of advance tax, its collection before the determination (passing of assessment order) and credit to be allowed against taxable income so determined, distinguishing it from charging or levy of tax. The challenge to the mechanism for collection and recovery of tax is misconceived. Of all the judgments referred, the cases of Karachi Port Trust, Karachi (supra) and Sui Northern Gas Pipelines Limited (SNGPL) (supra) require discussion, wherein, besides deciding the question of absence of jurisdiction of Taxation Officer/authorities to examine the estimate(s) furnished in terms of Section 147 of the Ordinance, the validity of the orders passed in terms of sub-section (7) of Section 147 were also discussed, though in the context of availability of jurisdiction to review and reject estimate(s) furnished. Let’s examine these two cases, as other case-law referred is not relevant in lieu of amendments. It is expedient to reproduce, for facility, reasoning extended in the case of Sui Northern Gas Pipelines Limited (SNGPL) (supra), which reads as:

“A closer look at the impugned notices are, in fact, unilateral and an ex-parte determination of an alleged advance tax due from the petitioner-company. This is not the mandate of sub-section (7) and by the said provision, which is merely by way of legislating by reference, powers cannot be conferred on the officer of income tax to dispute at each stage of the payment of advance tax by a taxpayer”

[emphasis supplied]

It is expedient to reproduce, the reasoning in the case of KarachiPort Trust, Karachi (supra), which reads as:

“The learned counsel for the respondent has also not been able to point out any provision of law which provides such authority and therefore we are of the considered opinion that once an estimate is filed only option available to the Taxation Authority is to levy default surcharge under sub-section (1B) of Section 205 after completing the assessment, if such default surcharge is leviable on the basis of assessment. The language of sub-section (7) of Section 147 is also clear which provides an authority to the Taxation Authority to recover advance tax not paid as if it was a tax due under an assessment order so that provisions of Section 137(2) are not violated. However, we are inclined to agree with the learned counsel for the applicant that it does not provide them an authority and jurisdiction to pass any order for the recovery of such tax and therefore we are on the considered opinion that order passed by the Taxation Officer is without proper jurisdiction and authority and cannot be sustained.

[Emphasis supplied]

1. In above-noted cases, one thing is common, that the orders were passed by the Taxation Officer/Authority under sub-section (7) of Section 147 of Ordinance, 2001, claiming payment of allegedly due advance tax payments. The ratio settled in the cases of KarachiPort Trust, Karachi (supra) and Sui Northern Gas Pipelines Limited (SNGPL) (supra) underlines the principle that in the absence of an authority or jurisdiction to examine or dispute the estimate(s) furnished, no corresponding power is vested to pass any order for the recovery of advance tax payments. And rightly so, how could a Taxation officer/Authority, in the absence of any jurisdiction/authority to object or differ with the estimates furnished, could pass any order in respect thereof? The amendments in sub-section (6) of Section 147 and proviso to sub-section (2) – added through the Finance Act, 2018 -of Section 137 of Ordinance, 2001 has introduced sea-change, whereby, besides extending jurisdiction to reject the estimate(s) the Commissioner is also empowered to direct taxpayer to compute advance tax amounts in accordance with the formula of computation provided under sub-section (4) of Section 147 of Ordinance, 2001, and pay the same within the timeframe prescribed – reference is made to sub-section (5A) of Section 147, ibid. No doubt, default surcharge can be claimed upon default in payment of quarterly advance tax payments, in accordance with due dates mentioned, without waiting for determination of tax liability after the close of relevant tax year. In this case, the Officer Inland Revenue, examined the documentary evidence, comprising of documents containing estimate(s) of advance tax payments and expressed lack of satisfaction, whereafter order of rejection of estimates was passed, whereupon advance tax becomes payable and recoverable as tax due. The conferment of jurisdiction/authority to reject estimate(s) renders the cases of Karachi Port Trust, Karachi (supra) and Sui Northern Gas Pipelines Limited (SNGPL) (supra) inapplicable qua subject matter controversy. It appears that legislature was mindful of the judicial pronouncements referred, while introducing the amendments through the Finance Act 2018. To recapitulate the discussion, it is reiterated that amendments effected have not altered the scope, nature and purpose of the advance tax but addressed the mischief of evasion of advance tax payments through furnishing of invalid and inadequate estimate(s), which are subjected to scrutiny in terms of first and second provisos to sub-section (6) of Section 147 of Ordinance, 2001, subject to fulfillment of the conditions prescribed therein. The jurisdictional objection qua initiation of recovery of due advance tax is repelled. The disputes, if any, regarding calculation, computation and deductions can appropriately be raised in terms of remedies available.

2. After holding that requisite jurisdiction is available, I take up the question of availability of remedy of appeal under sub-section (1) of Section 127 of Ordinance, 2001, against the orders impugned. It is expedient to reproduce sub-section (1) of Section 127, ibid, for facility, which reads as:

“127. Appeal to the Commissioner (Appeals).--(1) Any person dissatisfied with any order passed by a Commissioner or an Officer of Inland Revenue under Sections 121,122, 143, 144, 162, 170, 182, or 205, or an order under sub-section (1) of Section 161 holding a person to be personally liable to pay an amount of tax, or an order under clause (f) of sub-section (3) of Section 172 declaring a person to be the representative of a non-resident person or an order giving effect to any finding or directions in any order made under this Part by the Commissioner (Appeals), Appellate Tribunal, High Court or Supreme Court, or an order under Section 221 refusing to rectify the mistake, either in full or in part, as claimed by the taxpayer or an order having the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the person may prefer an appeal to the Commissioner (Appeals) against the order”.

[Emphasis supplied]

1. The petitioner has impugned two orders, one of which is order dated 30.01.2020, wherein component of default surcharge, in terms of Section 205 of the Ordinance, 2001, was included, which per-se becomes appealable under sub-section (1) of Section 127 of Ordinance, 2001. Learned counsel submits that no default surcharge has been claimed with respect to order dated 06.02.2020. Notwithstanding the aforesaid, I proceed to decide the issue as follows. Primary submission, by learned counsel for the petitioner, is that reference to Section 147 of Ordinance, 2001 or any order passed therein, is conspicuous by its absence in Section 127, ibid, therefore, no remedy of appeal is available. Reference is made to the decision in the case of Messrs PAK-SAUDI Fertilizer Ltd. (supra), which, albeit a leave refusing order, is otherwise not applicable to the facts and circumstances of the case at hand. In the case of Messrs PAK-SAUDI Fertilizer Ltd. (supra), the question involved was that whether Section 53 of Repealed Ordinance, extends any authority unto the Assessing Officer/Assistant Commissioner to frame assessment and demand advance income-tax in case of non-payment of advance tax, which was answered in negative. Even on facts, the case of Messrs PAK-SAUDI Fertilizer Ltd. (supra), is different, wherein there was no dispute regarding any difference qua the estimation furnished and actual advance tax payable, resulting in the claim of increased liability. The controversy in the case of Messrs PAK-SAUDI Fertilizer Ltd. (supra) has to be examined in the context of Section 53 of Repealed Ordinance. The case at hand is distinguishable, wherein deductibility of certain amounts was rejected and enhanced/increased advance tax payments were claimed, which order is appealable under Section 127 of the Ordinance, 2001. The words ‘or an order having the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the person’ are meaningful and cannot be ignored. Learned counsel for the petitioner has objected that conditions prescribed for exercise of authority in terms of provisos to sub-section (6) of Section 147 were not available, which questions along with other ancillary issues can appropriately be raised and may examined by the appellate forum, in case appeal is filed. This Court is not inclined to exercise jurisdiction qua any matter touching the exercise of jurisdiction. The question of authorization of Respondent No. 3 to assume jurisdiction in terms of sub-section (6) of Section 147 of Ordinance, 2001 can be raised before the appellate forum. I am not convinced with the submissions that no adequate opportunity was afforded, record speaks for itself. This Court is not inclined to comment of the factum of deductibility of alleged tax credit(s), which issues are sub-judice and any comment, in respect thereof, would prejudice the case of the parties.

23. In view of the above, this petition is incompetent and same is, therefore, dismissed. Any observation made herein shall not prejudice the case of any party on merits, either with respect to the proceedings currently pending or proceedings to be initiated by invoking the remedy of appeal provided under the provisions of Income Tax Ordinance, 2001, if advised, which matters shall be decided without being influenced by this judgment. No order as to the costs.

(Y.A.) Petition dismissed

PLJ 2020 Lahore 311 [Multan Bench, Multan]

Present: Ch. Muhammad Iqbal, J.

MUHAMMAD SAFDAR--Petitioner

versus

JUDGE FAMILY COURT TEHSIL CHICHAWATNI DISTT. SAHIWAL and 4 others--Respondents

W.P. No. 7899 of 2018, decided on 9.1.2020.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Suit for recovery of maintenance allowance--Decreed--Filling of application for setting aside ex-parte decree--Accepted--Suit was again decreed--Execution petition--Objection petition--Dismissed--Issuance of warrant for attachment of property of special power of attorney--Validity of order--Challenge to--Attorney can only exercise power conferred upon him on behalf of principal and he personally could not be considered as surety or guarantor of his principal and his assets also cannot be placed under any charge, lien or burden on behalf of obligation of his principal--Undeniably decree is passed against Muhammad Arshad--Respondent No. 5 and Courts are under obligation to execute decree against judgment debtor as per dictates of decree and it cannot go behind decree--There is no cavil and cudgel that decree is executable against judgment debtor/Respondent No. 5 and Courts are under legal jurisdiction to take all necessary coercive measures for execution/satisfaction of decree against judgment debtor/Respondent No. 5 but it cannot travel beyond scope of decree and to attach property of petitioner who was only an attorney of judgment debtor--Petitioner was mere special power of attorney who was later on disbelieved by his real brother Respondent No. 5 who himself filed application for setting aside judgment & decree which was accepted and whereafter he himself pursued matter, which showed implied renunciation of said power of attorney and this aspect has not been taken into consideration by Courts below, as such, impugned orders are not sustainable in eyes of law, which deserve reversal--Petition was allowed.

[Pp. 314] A & B

2007 SCMR 818, PLD 2013 SC 557, 2014 SCMR 1481 and 2001 MLD 1996 ref.

Ch. Muhammad Ashraf Sindhu, Advocate for Petitioner.

Rana Muhammad Shakeel, Advocate for Respondents No. 2 to 4.

Date of hearing: 9.1.2020.

Order

Through this writ petition, the petitioner has challenged the validity of order dated 21.12.2017 passed by the learned executing Court whereby warrant of attachment of property of special attorney of judgment debtor was issued; order dated 24.1.2018 whereby the learned executing Court attached the property of the petitioner being special attorney of judgment debtor and order dated 27.2.2018 passed by the learned executing Court who dismissed the objection petition of the petitioner.

1. Brief facts of the case are that Respondents Nos. 2 to 4/plaintiffs filed suit for recovery of maintenance allowance against Respondent No. 5/defendant namely Muhammad Arshad. The petitioner being special attorney of Respondent No. 5 filed contesting written statement but did not cross-examine the witnesses of respondents/plaintiffs and the learned Judge Family Court vide judgment and dectee dated 15.04.2015 decreed the suit in favour of Respondents No. 2 to 4. Respondent No. 5 Muhammad Arshad filed application for setting aside ex-parte judgment and decree dated 15.04.2015 which was accepted by the learned trial Court vide order dated 22.04.2016. Later on, again the learned Judge Family Court decreed the suit for recovery of maintenance allowance and delivery expenses vide judgment and decree dated 21.11.2016. The said judgment and decree neither assailed by Respondent No. 5 nor by the petitioner being special attorney. Respondents No. 2 to 4 filed execution petition in which the learned executing Court vide order dated 21.12.2017 issued warrant of attachment of personal property of the petitioner on account of his being special attorney of the judgment debtor, and same was attached vide order dated 24.01.2018. Petitioner filed objection petition which was also dismissed by the learned executing Court vide order dated 27.02.2018. Hence, this writ petition.

2. Learned counsel for the petitioner submits that the petitioner is neither judgment debtor nor appeared in the execution proceedings as special attorney of Respondent No. 5/judgment debtor, as such, impugned orders are liable to be set aside.

3. Learned counsel for Respondents No. 2 to 4/decree holders submits that the petitioner is special attorney of Respondent No. 5 and he participated in the suit as well as in the execution proceedings; that Respondent No. 5 is living abroad and the petitioner performed all the acts on behalf of Respondent No. 5/judgment debtor, as such, the attorney is responsible to pay the maintenance allowance as decreed by the learned Judge Family Court, therefore, the instant writ petition deserves dismissl.

4. I have heard the arguments advanced by the learned counsels for both the parties and gone through the record with their able assistance.

5. Admittedly, the decree was passed against Respondent No. 5 Muhammad Arshad who initially himself filed written statement on 21.10.2013 and also appointed his real brother Muhammad Safdar son of Ahmad Din as special attorney to pursue the case but the suit was decreed on 15.04.2015. Respondent No. 5 filed application for setting aside ex-parte proceedings dated 27.01.2015 on the ground that he is living in Saudi Arabia and has appointed Muhammad Safdar his (real brother) as special attorney to pursue the case but attorney being collusive with the decree holder neither produced evidence nor cross-examined the witnesses of decree holder, which resulted into passing of decree against him. The said application was accepted, judgment and decree was set aside vide order dated 17.06.2016 and case was fixed for cross-examination on the witnesses of the plaintiff. Respondent No. 5 appeared in person on 01.07.2016 and paid Rs. 4,000/- as maintenance allowance. On 15.07.2016 he paid Rs. 1500/- as cost and case was adjourned for cross-examination of the witnesses of the plaintiff. On 23.09.2016 Respondent No. 5 paid Rs. 8000/- and on the same date i.e. 23.09.2016 cross-examination was conducted by the learned counsel for Respondent No. 5 and case was adjourned for documentary evidence of the plaintiff as well as evidence of the defendant for 27.09.2016. On 27.09.2016 the documentary evidence was produced by the learned counsel for the defendant, the learned counsel for the plaintiff requested the learned trial Court to obtain surety bond from the defendant who was about to leave the country for Saudi Arabia on 06.10.2016, in order to secure the recovery of the amount in absence of defendant and direction was passed to the defendant to submit surety equal to claimed amount and case was adjourned for 30.09.2016. Respondent No. 5/defendant neither produced the evidence nor furnished any surety as directed by the learned Judge Family Court, Vehari, resultantly his right was closed on 16.11.2016, whereafter the learned Judge Family Court, Vehari decreed the suit for recovery of maintenance allowance and delivery expenses vide judgment and decree dated 21.11.16. In execution petition report was submitted by the process server that the judgment debtor is presently living in Saudi Arabia. The learned executing Court without following the procedure as prescribed under Order V of CPC as well as the dictum laid down by the Hon’ble Supreme Court of Pakistan in the cases titled as Ahmed Khan v. Haji Muhammad Qassim and others (2002 SCMR 664) and Nouroz Khan v. Haji Qadoor (2005 SCMR 1877) proceeded to attach the property of the petitioner. Admittedly the decree was passed against Respondent No. 5, who himself was pursuing the case showing distrust on the attorney rather leveled allegation of collusiveness of the petitioner (attorney) with plaintiff. All these subsequent events show the existence of a distance between the principal and his attorney. Even otherwise attorney can only exercise the power conferred upon him on behalf of the principal and he personally could not be considered as surety or guarantor of his principal and his assets also cannot be placed under any charge, lien or burden on behalf of the obligation of his principal. Undeniably decree is passed against Muhammad Arshad. Respondent No. 5 and Courts are under obligation to execute the decree against the judgment debtor as per the dictates of the decree and it cannot go behind the decree. Reliance is placed on the cases titled as Muhammad Tariq Khan vs. Khawaia Muhammad Jawad Asami and others (2007 SCMR 818), Humayun Hassan vs. Arslan Humayun and another (PLD 2013 SC 557), Irshad Masih and others vs. Emmanuel Masih and others (2014 SCMR 1481), Hafiz Muhammad Ashiq Hussain vs. Mst. Abida Begum (1996 MLD 588) and Sheikh Muhammad Ikram and another vs. Government of Pakistan through Secretary, Ministry of Finance, Islamabad & 3 others (2001 MLD 1996). There is no cavil and cudgel that the decree is executable against the judgment debtor/Respondent No. 5 and Courts are under legal jurisdiction to take all the necessary coercive measures for execution/satisfaction of the decree against the judgment debtor/Respondent No. 5 but it cannot travel beyond the scope of the decree and to attach the property of the petitioner who was only an attorney of the judgment debtor. Petitioner was mere special power of attorney who was later on disbelieved by his real brother Respondent No. 5 who himself filed application for setting aside judgment and decree which was accepted and whereafter he himself pursued the matter, which showed the implied renunciation of the said power of attorney and this aspect has not been taken into consideration by the learned Courts below, as such, impugned orders are not sustainable in the eyes of law, which deserve reversal.

7. In view of above, this writ petition is allowed. Orders dated 21.12.2017, 24.01.2018 and 27.02.2018 passed by the learned executing Court are hereby set aside.

(Y.A.) Petition allowed

PLJ 2020 Lahore 315

Present: Shujaat Ali Khan, J

HINA RAHAT DAR--Petitioner

versus

MianATTIQ-UR-REHMAN etc.--Respondents

W.P. No. 17958 of 2019, heard on 11.02.2020.

Punjab Rented Premises Act, 2009 (VII of 2009)--

----Ss. 25(3), 26(1), 27 & 28(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Closing of writ of defence--Recording of evidence--Interim order--Exercise of powers of Civil Court by rent tribunal--Constitutional jurisdiction--Challenge to--Being ex-parte petitioner filed application for recording of her evidence through E-Court which was accepted by Special Judge (Rent) but later on her counsel made statement that petitioner was not ready to avail facility of E-evidence which fact speaks volumes about lethargic attitude of petitioner--Admittedly, impugned order is interim in nature which has been declared non-challengeable as per Section 28(2) of Act, 2009 and in case constitutional jurisdiction of this Court is exercised to set aside same very purpose to exclude jurisdiction of Appellate Court to take care of an interim order passed by Special Judge (Rent), would become redundant--A Rent Tribunal enjoys powers of Civil Court in respect of attendance and production of evidence, thus, its powers to close right of a party cannot be abridged--Petition was dismissed.

[Pp. 316 & 317] A, B & C

Mr. Qaisar Mahmood Sra, Advocate for Petitioner.

Mr. Muhammad Salim Chaudhary, Advocate for Respondents No. 1 & 2.

Date of hearing: 11.02.2020.

Judgment

By filing this petition, the petitioner has put a challenge to order, dated 02.03.2019, passed by the learned Special Judge (Rent), Lahore whereby her right to produce evidence in the Ejectment Petition filed by her was closed.

1. Learned counsel for the petitioners contends that while passing the impugned order the learned Special Judge (Rent) foiled to consider that the petitioner being Overseas Pakistani could not enter the witness box in person; that application of the petitioner for recording of her statement through E-Court was accepted and she was directed to arrange for DVD and to get time from E-Court but without giving any schedule in that regard, penal order was passed against her; that while passing the impugned order the learned Special Judge (Rent) failed to consider that no provision regarding closure of evidence of a party exists in the Punjab Rented Premises Act, 2009 (the Act, 2009). Relies on Muhammad Yousafand 7 others v. Falak Sher Khan and 7 others (2018 CLC Note 133).

2. On the other hand, learned counsel representing Respondents No. 1 & 2 submits that lethargic attitude on the part of the petitioner is evident from the fact that the Ejectment Petition was filed in the year 2016 and Issues were framed on 27.09.2017 whereafter the petitioner was given seven opportunities to complete her evidence but instead of producing evidence she filed application for recording of her evidence through E-Court and after acceptance of the said application she was again given three opportunities but she failed to produce evidence, thus, the learned Special Judge (Rent) was left with no option but to pass the impugned order; that according to Section 25(3) of the Act, 2009 only two opportunities can be granted to a party to produce evidence but while showing maximum leniency the learned Special Judge (Rent) provided almost 10 opportunities to the petitioner but she failed to produce evidence; that under Section 27 of the Act, 2009, four months’ time has been fixed for decision of the Ejectment Petition but due to delaying tactics played by the petitioner the Ejectment Petition has not reached its logical conclusion and that the impugned order being interim in nature cannot be challenged in these proceedings.

3. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with this petition.

4. A perusal of the order sheet of the learned Special Judge (Rent), placed on record by Respondents No. 1 & 2 alongwith their written statement, shows that the Ejectment Petition was filed on 29.04.2016 and the Issues were framed on 27.09.2017 whereafter the matter remained fixed for recording of evidence but despite availing numerous opportunities the petitioner failed to produce evidence compelling the learned Special Judge (Rent) to pass the impugned order.

6. It is very interesting to note that being ex-parte the petitioner filed application for recording of her evidence through E-Court which was accepted by the learned Special Judge (Rent) but later on her counsel made statement that the petitioner was not ready

to avail the facility of E-evidence which fact speaks volumes about lethargic attitude of the petitioner.

7. Admittedly, the impugned order is interim in nature which has been declared non-challengeable as per Section 28(2) of the Act, 2009 and in case the constitutional jurisdiction of this Court is exercised to set aside the same the very purpose to exclude jurisdiction of learned Appellate Court to take care of an interim order passed by learned Special Judge (Rent), would become redundant.

8. Now coming to the case-law, cited by learned counsel for the petitioner, I am of the view that the same is of no help to her for the reason that the said case having been decided by a learned Single Bench of this Court has no binding force. Further, according to Section 26(1) a Rent Tribunal enjoys powers of Civil Court in respect of attendance and production of evidence, thus, its powers to close right of a party cannot be abridged.

1. For what has been noted above, I see no force in this petition which is hereby dismissed.

(Y.A.) Petition dismissed

PLJ 2020 Lahore 317

Present: Sardar Muhammad Shamim Khan, J

MUHAMMAD RIAZ--Petitioner

versus

JUSTICE OF PEACE/ADDITIONAL SESSION JUDGE, FEROZEWALA and 3 others--Respondents

W.P. No. 22651of 2012, decided on 13.09.2012.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Petition for registration of case--Direction to--Validity of order--Specific allegations--Applicability of case laws--Contention of learned counsel for petitioner that infact police conducted raid at house of Respondent No. 3 in-order to effect arrest of her daughter in aforementioned criminal cases, therefore, application under Section 22-A, Cr.P.C. had been filed by Respondent No. 3 before JOP on wrong facts is a matter which could be thrashed out during investigation after registration of FIR--Case laws referred to by learned counsel for petitioner are not applicable to facts-and circumstances of instant case--I find no infirmity or illegality in impugned order passed by JOP calling for interference by this Court--Petition was dismissed. [P. 319] A & B

Mr. Munir Hussain Bhatti, Advocate for Petitioner.

Miss Rabia Bajwa, AAG on Court’s call.

Date of hearing: 13.09.2012.

Order

Through this constitutional petition, Muhammad Riaz petitioner has challenged the validity of order dated 27.08.2012 passed by learned Addl. Sessions Judge/Justice of Peace Ferozewala, whereby, upon, an application under Section 22-A, Cr.P.C. submitted by Mst. Sardaran Bibi (Respondent No. 3) a direction was issued to S.H.O Police Station Factory Area District Sheikhupura to record the statement of Respondent No. 3 and to proceed further as per law.

1. Learned counsel for the petitioner contended that from the contents of application under Section 22-A, Cr.P.C. submitted by Mst. Sardaran Bibi Respondent No. 3 before the learned Justice of Peace, commission of cognizable offence was not made out against the petitioner and other police officials that in fact Mst. Sardaran Bibi and her other family members were not enjoying good reputation in the vicinity and police conducted raid in order to effect the arrest of Mst. Mukhtaran Bibi daughter of Respondent No. 3 in case FIR Nos. 938/2012 and 953/2012; that Respondent No. 3 submitted application under Section 22-A, Cr.P.C. before the petitioner and other police officials just to avoid the arrest of her daughter Mst. Mukhtaran Bibi in the aforementioned cases. Learned counsel for the petitioner while relying upon case laws reported as Muhammad Umar Tarar vs. Federation of Pakistan and others (2012 YLR 1187 Lahore), Muhammad Waris vs. D.P.O and others (2012 YLR Lahore), Muhammad Yameen vs. Abdul Sattar Narejo and others (2012 SCMR 101) and Safdar Hussain vs. Ex-Officio Justice, of Peace and 2 others (2012 MLD 1150 Lahore) prayed that by accepting this petition impugned order dated 27.08.20]2 passed by learned Justice of Peace Ferozewala is liable to be set aside.

2. Learned AAG present on Court’s call contended that from the contents of application under Section 22-A, Cr.P.C. submitted by Respondent No. 3 before the learned Justice of Peace commission of cognizable offence was made out, therefore, there was no illegality in the impugned order.

3. It have heard the arguments of learned counsel for the petitioner as well as learned AAG and perused the available record with care.

5. It has been noticed that from the contents of application under Section 22-A, Cr.P.C. submitted by Respondent No. 3 before the learned Justice of Peace commission of cognizable offence was made out as there was specific allegation against the petitioner Muhammad Riaz that he forcibly snatched an amount of Rs. 10,000/- and two mobile phones from the daughter of Respondent No. 3. It has further been alleged in the said application that accused persons criminally trespassed in the house of Respondent No. 3 and inflicted injuries on the persons of Mst. Mukhtaran Bibi (Respondent No. 3) and her daughter Mst. Mulchtaran Bibi. The contention of learned counsel for the petitioner that infact police conducted raid at the house of Respondent No. 3 in order to effect the arrest of her daughter Mst. Mukhtaran Bibi in the aforementioned criminal cases, therefore, application under Section 22-A, Cr.P.C. had been filed by Respondent No. 3 before the learned Justice of Peace on wrong facts is a matter which could be thrashed out during investigation after registration of FIR. The case laws referred to by learned counsel for the petitioner are not applicable to the facts-and circumstances of instant case.

6. For what has been discussed above, I find no infirmity or illegality in the impugned order dated 27.08.2012 passed by learned Justice of Peace Ferozewala calling for interference by this Court, therefore, instant petition stands dismissed in limine.

(Y.A.) Petition dismissed

PLJ 2020 Lahore 319[Rawalpindi Bench Rawalpindi]

Present: Mirza Viqas Rauf, J

SAJJAD KHAN--Appellant

versus

LIAQAT ALI--Respondent

R.F.A. No. 01 of 2015, heard on 18.12.2019.

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

----Ss. 96, 97 & O.XXXVII R. 2, 3--Pakistan Penal Code 1860, S. 489-F--Suit for recovery--Decreed--Issuance of cheque--Cheque was dishonoured--Non-producing of evidence by plaintiff--Initiation of suit--Presumption of truth--Challenge to--Law is well settled that when a specific fact is asserted in plaint then defendant is bound to controvert same with specific implications and any evasive denial would be deemed to be an admission on his part qua that fact as ordained in Order VIII Rule 5 of “CPC”--Cheque is one of negotiable instrument under Negotiable Instruments Act, 1881--Order XXXVII Rule 2 of “CPC” envisages that a suit can be instituted in a summary character on basis of bills of exchange, hundies or promissory notes--Suit in a summary character was thus fully competent and maintainable--Respondent in order to prove his claim has produced all necessary evidence and as such successfully proved his case--Appellant has since failed to prove that cheque was issued as surety so no cavil left that cheque was issued with consideration--Respondent was thus no more required to lead any evidence to prove this fact--Additional District Judge was justified to decree suit in presence of overwhelming and unimpeachable evidence in support of claim of respondent--Appellant has failed to point out any illegality, material irregularity, misreading or non-reading of evidence, justifying interference by this Court in appellate jurisdiction--Appeal was dismissed.

[Pp. 323, 324 & 325] A, B, D, E & F

PLD 2011 SC 119 and 2003 SCMR 1864 ref.

Negotiable Instruments Act, 1881 (XXVI of 1881)--

----S. 118--Presumption of truth--Section 118 of Negotiable Instruments Act, 1881 a cheque, being a negotiable instrument carries a presumption of truth. [P. 324] C

2003 CLD 521.

Mr. Mubaris Khan Alizai, Advocate for Appellant.

Malik Amjad Ali, Advocate for Respondent.

Date of hearing: 18.12.2019.

Judgment

This regular first appeal in terms of Section 96 of the Code of Civil Procedure (V of 1908) (hereinafter referred as “CPC”) calls in question the judgment and decree dated 13th December, 2014 handed down by the learned Additional District Judge, Attock, whereby he proceeded to decree the suit instituted by the respondent in terms of Order XXXVII of the Code ibid.

1. Precisely the facts necessary for adjudication of instant appeal are that the respondent instituted a suit for recovery of Rs. 44,80,000/- in a summary character, while invoking provisions of Order XXXVII of “CPC” on the basis of cheque Bearing No. 8892406 pertaining to Account No. 0120023605 Allied Bank Hazro Main Bazar Branch. It is averred in the plaint that the respondent had purchased a plot measuring 16 Marias through Khan Afsar Siddiqui vide registered Sale-Deed No. 6038/1 dated 13th October, 2009 against sale consideration of Rs. 44,80,000/- from the appellant, who brought Muhammad Ramzan Shad (husband of one Mst. Balqees Akhtar) for the transfer of plot in favour of Muhammad Bilal as the same was in the name of said Mst. Balqees Akhtar and the sale amount in the registered sale-deed was mentioned as Rs. 11,20,000/-. As per averments contained in the plaint, the respondent appeared on behalf of Muhammad Bilal at the time of attestation of registered sale-deed and he paid Rs. 44,80,000/- and in this regard on 12th October, 2009 the appellant also made a declaration in favour of Khan Afsar Siddiqui (broker) through stamp Paper No. 966 dated 12th October, 2009 stating that he (appellant) will hand over the possession of the plot to the respondent. He also handed over a Cheque No. 1411077 dated 12th November, 2009 amounting to Rs. 44,80,000/- to said Khan Afsar Siddiqui with the condition that if the appellant fails to hand over the possession of plot till 12th November, 2009, then the respondent will encash the cheque and get amount from Khan Afsar Siddiqui. As per contents of the plaint, when it came into knowledge of the respondent that the appellant not only failed to hand over the possession of the plot to him but he committed fraud because a fake plot has been sold out in connivance with said Muhammad Ramzan Shad, being attorney of his wife Mst. Balqees Akhtar despite the fact that the said plot had already been sold out in favour of Public Cooperative Housing Society Limited Lala Rukh, Want Cantonment vide Sale-Deed No. 792/1 dated 28th February, 1983 including other lands and cheque issued in favour of Khan Afsar Siddiqui was also dishonoured. It is the claim of the respondent that then he approached to the appellant whereupon he issued cheque in question, which on presentation to the bank was dishonoured due to insufficient amount. The appellant, while resisting the suit submitted an application for leave to appear and to defend, which was allowed vide order dated 09th June, 2011. The appellant in his written statement asserted that he has business relationship with the respondent and the cheque in question was given as surety. From the divergent pleadings of the parties, learned trial Court framed following necessary issues:-

ISSUES

1. Whether plaintiff is entitled to get a decree for recovery of amount of Rs. 44,80,000/- on the basis of Cheque No. 8892406 dated 30.5.2005 of Account No. 0120023605 which was issued by the defendant in favour of Plaintiff No. 1? OPP

2. Whether plaintiff has no cause of action and locus standi to bring this suit? OPD

3. Whether the suit of the plaintiff is not maintainable in its present form? OPD

4. Whether alleged cheque is without consideration and issued by the defendant as a surety in favour of Plaintiff No. 1 and instant suit has been filed by the plaintiff on the basis of mala fide by keeping secret the original facts? OPD

5. Relief.

After framing of issues both the parties produced their respective evidence and on completion of the same, suit was decreed by way of impugned judgment dated 13th December, 2014, hence this appeal.

1. Learned counsel for the appellant submitted that suit in a summary character was not maintainable under the circumstances. Learned counsel for the appellant contended that cheque in question was issued to the respondent as surety and it was without consideration, so onus shifts upon him to prove his stance. Learned counsel maintained that suit was decreed in an illegal and unlawful manner and evidence has grossly been misread by the Court below.

2. Conversely, learned counsel for the respondent submitted that the appellant though pleaded that cheque was issued as surety but he did not produce any evidence to this effect. Learned counsel argued that to the contrary, respondent produced all the material evidence which supported his case and suit was rightly decreed. Learned counsel contended that appellant has failed to point out any illegality or material irregularity in the impugned judgment.

3. Heard. Record perused.

4. The suit was instituted on the basis of cheque Bearing No. 8892406 dated 30th May, 2010 (Exhibit-P1) purportedly issued by the appellant, which was dishonoured on its presentation to the concerned bank. The respondent in order to prove his claim himself appeared as PW1 and also tendered necessary documents as Exhibit-P1 to Exhibit-P10, respectively. The respondent duly established the issuance of cheque by the appellant in his favour and fully supported his version. He was though cross-examined at length but nothing could be extracted therefrom.

5. Perusal of record reveals that while resisting the suit the appellant moved an application seeking leave to appear and to defend in terms of Order XXXVII Rule 3 of “CPC”. The application was accepted by way of order dated 09th June, 2011 and in pursuance thereof, the appellant submitted his written statement. From the contents of written statement it is evidently clear that issuance of cheque is not denied by the appellant. His stance is that cheque was handed over to the respondent as a surety/guarantee. Even otherwise Para No. 6 of the written statement reveals that only evasive denial was made by the appellant in respect of his liability. Law is well settled that when a specific fact is asserted in the plaint then defendant is bound to controvert the same with specific implications and any evasive denial would be deemed to be an admission on his part qua that fact as ordained in Order VIII Rule 5 of “CPC”. Reference in this respect if needed can be made to “Ghulam Rasool throush L.Rs. and others versus Muhammad Hussain and others” (PLD 2011 Supreme Court 119) and “Bashir Ahmed and 3 others versus Muhammad Aslam and 6 others” (2003 SCMR1864).

8. It is also noteworthy to mention here that the respondent produced FIR No. 603 offence under Section 489-F of the Pakistan Penal Code, 1860 registered at Police Station Hazro against the appellant regarding dishonouring of cheque in question as Exhibit-P7. The appellant applied for his pre-arrest bail before the learned Additional Sessions Judge, Attock in the said case wherein he recorded his statement on 10th January, 2011 to the following effect:

"بحث کونسل فریقین سماعت ہوئی دوران بحث فاضل کونسل سائل نے آفر کی کہ سائل رقم مبلغ چوالیس لاکھ اسی ہزار روپے محمد بلال مشتری کو ادا کرنے کو تیار ہے اگر وہ اراضی متدعویہ کی رجسٹری یا منتقلی سائل یا اس کے مقررہ کسی دیگر شخص کے نام کرا دے۔ اِس پر فاضل کونسل مستغیث بیانی ہیں کہ محمد بلال مشتری حاضر ہو جائے گا مگر انتقال بحق محمد بلال بروئے حکم D.O.R.مورخہ 06.01.10منسوخ ہو چکا ہے۔ اس لئے وہ مختار نامہ عام اراضی خرید کردہ کی بابت سجاد خان یا اُس کے مقرر کردہ کسی دیگر شخص کے نام اراضی خرید کردہ بابت رجسٹری نمبر 6038 مورخہ 13.10.09بابت خسرہ نمبر 338۔ کھیوٹ نمبر 296 کھتونی نمبر 413 رقبہ متصلہ 16مرلے کی حد تک مختار نامہ رجسٹر کروا کر سائل سجاد خان کو دے گا اور سائل رقم مبلغ44,80,000/-۔ محمد بلال کو ادا کر دےگا۔ دستخط سائل و فاضل کونسل سائل و کونسل مستغیث بر آڈر شیٹ حاصل کئے گئے۔ حسب استدعا کونسل فریقین ملتوی ہو کر بتقرر 17-01-11 برائے حاضری فریقین و تکمیل معاہد پیش ہو۔ سنایا گیا۔"

It is manifestly clear from the above that the appellant himself admitted the liability. Furthermore on the basis of registration of said FIR conviction of the appellant was also made through judgment dated 20th July, 2011 passed by the learned Magistrate Section 30, Attock, which also attained finality and same was produced by the respondent in evidence as Exhibit-P9.

1. Learned counsel for the appellant has mainly emphasized that the registered sale-deed executed in favour of the respondent in pursuance to the transaction is still intact, suffice to observe that this by itself is sufficient to substantiate that the cheque was with consideration and it was not issued as security/guarantee. Even otherwise it is apparent from the record that in pursuance to the sale-deed Mutation No. 6062 dated 16th December, 2009 (Exhibit-P4) was effected, which was reviewed by the orders of the District Officer (Revenue)/Collector and through Mutation No. 6162 dated 29th march, 2010 (Exhibit-P6) land stood transferred in the name of Wali Public Cooperative Society Limited.

10. There is no denial that cheque is one of the negotiable instrument under the Negotiable Instruments Act, 1881. Order XXXVII Rule 2 of “CPC” envisages that a suit can be instituted in a summary character on the basis of bills of exchange, hundies or promissory notes. The suit in a summary character was thus fully competent and maintainable.

11. In terms of Section 118 of the Negotiable Instruments Act, 1881 a cheque, being a negotiable instrument carries a presumption of truth. The respondent in order to prove his claim has produced all the necessary evidence and as such successfully proved his case. Even otherwise when it is appellant’s own case that he has handed over the cheque to the respondent which bears his signatures then he was obliged to prove that it was for some other consideration and was a guarantee/surety. The appellant has since failed to prove that cheque was issued as surety so no cavil left that cheque was issued with consideration. The respondent was thus no more required to lead any evidence to prove this fact. Reference in this respect, if needed, can be made, to “Azhar Hussain versus Muhammad Iqbal” (2003 CLD 521) wherein it is held that:

“6. Section 118(a) of the Negotiable Instruments Act, 1881 give rise to a statutory presumption to every negotiable instrument that the said document was executed with consideration. For convenience, the relevant provision is reproduced as follows:

Section 188. “Presumptions as to negotiable instruments.--Until the contrary is proved, the following presumptions shall be made:--

(a) Of consideration: that every negotiable instrument was made or drawn for consideration, and that ever such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed negotiated or transferred for consideration;”

In the instant case, the respondent while appearing as D.W.1 had admitted to have signed Exh.P.1 and Exh.P.2. Once it is admitted that the document/negotiable instrument was executed between the parties, the statutory presumption that the document was with consideration comes into existence and the plaintiff is no more required to lead any evidence to prove consideration. However, this presumption is rebuttable and the defendant has every right to raise a plea of fraud or that the instrument was not intended to be a negotiable instrument or for that matter he may raise any other plea. But such plea has to be raised in his written statement and then proved through evidence…….”

12. For the foregoing reasons, I feel no hesitation to observe that the learned Additional District Judge was justified to decree the suit in presence of overwhelming and unimpeachable evidence in support of the claim of respondent. The appellant has failed to point out any illegality, material irregularity, misreading or non-reading of evidence, justifying interference by this Court in appellate jurisdiction, consequently the instant appeal fails and is dismissed with no order as to costs.

(Y.A.) Appeal dismissed

PLJ 2020 Lahore 325

Present: Mrs. Ayesha A. Malik, J

SyedZIA-UL-HUSSNAIN SHAMSI etc.--Petitioners

versus

GOVERNMENT OF PUNJAB through CHIEF SECRETARY, LAHORE etc.--Respondents

W.P. No. 17858 of 2011, heard on 15.2.2019.

Payment of Wages Act, 1936 (IV of 1936)--

----Ss. 15 & 17--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Writ of quo warranto--Maintainability--Pensionary benefits--Labour and welfare of labour--Exercising of authority--Question of jurisdiction--A writ of quo warranto was not maintainable against a designation where no specific person had been named and that jurisdiction of Authority was not limited to deal with cases involving workman--Petitioners then refilled writ petition in terms of order in form of instant petitions--Through these petitions, Petitioners have named persons acting as Authority under Act and have challenged their appointments as Authority on ground that they cannot hold public office since they are not eligible in terms of Section 15 of Act--Petitioners are Financial Institution being trans-provincial in nature, hence Authority cannot exercise jurisdiction over their employees as jurisdiction in such case vests with National Industrial Relations Commission (“NIRC”)--Impugned orders are set aside as Authority acting under Provincial law does not have jurisdiction over Financial Institutions which are trans provincial organizations--It is noted that these petitions have been filed by employers against orders passed by Authority in favour of employees for whom statutory remedy of appeal is available under Section 17 of Act--Petitions was allowed.

[Pp. 328, 329 & 330] A, B, C & D

PLD 2016 Lah. 433 and 2018 SCMR 802 ref.

Mr. Farooq Zaman Qureshi and Mr. Riaz Hussain Haleem, Advocates for Petitioners (in W.P. No. 17858 of 2011)

Syed Hammad Raza, Advocate for Petitioner (in W.Ps. No. 8016, 8017, 8018, 8019, 8020 and 8021 of 2013).

Mr. Muhammad Muzamil Qureshi, Advocate for Petitioner (in W.Ps. No. 14254/12, 24473/12, 3643/13, 7151/13 and 6191/14).

Mr. Umer Abdullah, Advocate for Petitioner (in W.P. No. 250646 of 2018).

Mr. Salim Baig and Mr. Khurram Saleem Baig, Advocate for Petitioner Bank (in W.P. Nos. 28270, 28271, 28272, 28273 and 28274 of 2011).

Nemo for Petitioner Bank (in W.P. Nos. 19795, 19796 of 2012 and 677/13).

Mr. Nasar Ahmad, DAG for Respondents.

Mr. Shoaib Zafar, Additional Advocate General, Punjab along with Raj Maqsood, Law Officer, in the office of Respondent No. 2, Secretary Labour Department, Lahore.

Malik Ghulam Rasul, Advocate for Private Respondents No. 10 to 12 (in W.P. No. 17858 of 2011).

Malik Muhammad Afzal Khokhar, Advocate for Private Respondents (in W.P. Nos. 28270 to 28274 of 2011).

Date of hearing: 15.2.2019.

Judgment

This common judgment decides upon the issues raised in the petitions detailed in Schedule “A and B” appended with the judgment as all the petitions raise common questions of law and facts.

1. There are two sets of petitions before the Court. The first set of petitions mentioned in Schedule-A have been filed by employers who have challenged the orders of the Authority under Payment of Wages Act, 1936 (“Authority”) where payment of wages in favour of the employees have been ordered by the Authority through the orders impugned before the Court. The second set of petitions mentioned in Schedule-B have been filed by Financial Institutions against the orders of the Authority with respect to the claims filed before them by retired bank officers claiming retirement benefits. The Authority decided to proceed with the claims holding that it has jurisdiction in the matter. As most of the issues are common, these cases have been heard together.

2. The basic challenge in the petition detailed in Schedule A are that Authority does not have jurisdiction in the matter because after the 18th Amendment in the Constitution of Islamic Republic of Pakistan, 1973 (“Constitution”), the matter pertaining to labour and welfare of labour devolved on to the Provinces and the Authority established under the Federal law had become incompetent and cannot hear the matter. In some of these cases apart from 18th Amendment argument, merits of the impugned order have also been challenged, interim orders have been challenged and in some petitions orders passed on miscellaneous applications have also been challenged.

3. The second set of petitions filed by the Financial Institutions (Schedule B) the Petitioners have challenged, in the form of quo warranto, the exercise of Authority by persons appointed under Section 15 of the Act. The basic grievance is that the Respondents acting as the Authority under the Act are not eligible to hold office as they do not meet the qualifications provided in Section 15 of the Act. In this regard, in an earlier round of litigation, WP No. 14499/2009 was filed wherein retired Executive Officers of the Bank claimed certain pensionary benefits, which was denied to them vide judgment dated 15.12.2009 on account of the fact that they had accepted a revised pay package on the basis of which their pension was given. The petition was ultimately dismissed as being not maintainable as it was filed by a registered body of the retired Executive Officers against a private Bank. Subsequently, the question of jurisdiction was agitated before the Authority in the applications filed under Order VII Rule 11 of the Civil Procedure Code, 1908 (“CPC”), which were rejected as the Authority claimed that it had jurisdiction in the matter. These orders have been challenged in WP No. 9650/2010, which was dismissed by a learned Division Bench vide order dated 21.02.2011 on the ground that a writ of quo warranto was not maintainable against a designation where no specific person had been named and that the jurisdiction of the Authority was not limited to deal with cases involving workman. The Petitioners then refiled the writ petition in terms of order dated 21.02.2011 in the form of the instant petitions. Through these petitions, the Petitioners have named the persons acting as Authority under the Act and have challenged their appointments as the Authority on the ground that they cannot hold public office since they are not eligible in terms of Section 15 of the Act. In the meanwhile, the same matter was challenged in WP No. 13792/2011 which was accepted vide judgment dated 30.09.2015, the impugned orders were set aside and the claim filed by the Respondents before the Authority were dismissed with respect to the Financial Institutions. Learned counsel for the Petitioners have relied on the stated judgment dated 30.09.2015 to urge the point that the matter raised in the instant petition stands decided.

5. The second ground urged before the Court in these petitions is that the Petitioners are Financial Institution being trans-provincial in nature, hence the Authority cannot exercise jurisdiction over their employees as jurisdiction in such case vests with the National Industrial Relations Commission (“NIRC”). In this regard, reliance has been placed on the judgment of this Court “Imran Maqbool President, MCB Bank Limited v. Federation of Pakistan through v. Secretary Law, Justice and Human Rights Division, Islamabad etc.” (2018 LHC 1960) and the august Supreme Court of Pakistan Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others (2018 SCMR 802). Learned counsel for the Petitioners argued that this matter has already been addressed in WP No. 13792/2011 in Paragraph No.15 wherein it is held that since the Financial Institutions are trans-provincial in nature, the Authority does not have jurisdiction. The said judgment was then appealed against before the august Supreme Court of Pakistan in which leave granting order was passed on 22.07.2016 and the operation of Paragraph Nos. 25 to 28 of the impugned judgment have been suspended. However, so far as the decision given in paragraph 15, that remains intact.

1. Report and parawise comments have been filed on behalf of the Respondents No. 2, Secretary Labour, Government of Punjab, Lahore as well as private Respondents No. 3, 5, 6, 7, 8, 10 to 12. It is argued that the Respondents, who are acting as Authority, have been appointed in accordance with law. Moreover, the legal challenge has been defended while upholding the law and the manner in which the appointments have been made. It is also alleged that since the matter is sub-judice before the august Supreme Court of Pakistan where the operative part of the judgment has been suspended, this Court is not bound by the leave granting order.

2. With respect to the quo warranto challenge to the appointment of the Authority that matter is sub-judice before the august Supreme Court of Pakistan vide leave granting order dated 22.07.2016. However, so far as the argument that the Banks are trans-Provincial Organization, the matter stands decided in terms of the judgment of the august Supreme Court of Pakistan 2018 SCMR 802 (supra) and of this Court 2018 LHC 1960 (supra) wherein it was has held as under:

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 No. 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.

Under the circumstances, on this point alone, the petitions filed by the Banks mentioned in Schedule-B are allowed and the impugned orders are set aside as the Authority acting under the Provincial law does not have jurisdiction over Financial Institutions which are trans provincial organizations.

1. With respect to the second set of cases it is noted that they were filed soon after the 18th Amendment, whereafter the Federal law

was adopted by the Province law in terms of the Punjab Payment of Wages (Amendment Act) 2014 on 19.3.2014 and these cases are now being tried under the Provincial law. Even otherwise, in terms of the judgment of this Court cited at “Salim Javed Baig and others v. Federal Ombudsman and others” (PLD 2016 Lahore 433) and the judgment passed by the august Supreme Court of Pakistan 2018 SCMR 802 (supra) under Article 270AA (6) of the Constitution all applicable Federal laws remain in force as a Provincial law until such time that the Federal law is repealed or amended or adopted by the Province. Therefore, to this extent there is no merit in the ground for challenge as the Province has adopted the Federal law and the Authority is acting in its capacity as Provincial Authority. Even otherwise it is noted that these petitions have been filed by the employers against the orders passed by the Authority in favour of the employees for whom statutory remedy of appeal is available under Section 17 of the Act. Hence the petitions mentioned in Schedule-A being not maintainable are dismissed.

(Y.A.) Petitions allowed

PLJ 2020 Lahore 330

Present: Sardar Ahmed Naeem, J.

MUHAMMAD IRFAN--Petitioner

versus

EX-OFFICIO JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE, GUJRANWALA and 2 others--Respondents

W.P No. 2409 of 2016, decided on 05.04.2016.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Business relations between parties--Report of Illaqa police--Civil dispute--Non-consideration of police report--Application of correct law--JOP obtained reply/report from Illaqa Police which suggested that, in fact, it was a civil dispute between parties and that it was basically a cheque given by way of guarantee--A similar report was filed by S.H.O. before this Court--There is no cavil to preposition that JOP is not bound to call for report/comments from police once report is requisitioned, it should be considered and must not be ignored--JOP neither considered police report nor applied correct law, thus, impugned order is liable to be set aside--Petition was allowed. [P. 331] A & B

PLD 2005 Lah. 470 ref.

Munir Hussain Bhatti, Advocate for the petitioner.

Mr. Waqar Ahmed Ch., Assistant Advocate General along with Farooq, A.S.I.

Ch. Shoukat Mehmood Cheema, Advocate for Respondent No. 3.

Date of hearing: 05.04.2016.

Order

An application moved by Respondent No. 3 under Sections 22-A, 22-B, Cr.P.C. was disposed of by the learned Ex-Offico Justice of Peace, Gujranwala with the direction to the S.H.O. to proceed under the law vide order dated 19.01.2016, being impugned before the Court.

1. It was argued that no cognizable offence was spelt out by the contents of the application but the learned Ex-Officio Justice of Peace failed to appreciate the facts and law in its true perspective.

2. Learned counsel for Respondent No. 3 maintained the validity of the impugned order.

3. Arguments heard. Record perused.

5. The contents of the application moved by Respondent No. 3 revealed that there was business relation between the parties. Learned Ex-Officio Justice of Peace obtained reply/report from the Illaqa Police which suggested that, in fact, it was a civil dispute between the parties and that it was basically a cheque given by way of guarantee. A similar report was filed by the S.H.O. before this Court. There is no cavil to the preposition that learned Ex-Officio Justice of Peace is not bound to call for report/comments from the police once the report is requisitioned, it should be considered and must not be ignored. In this regard, reliance is placed on “Khizer Hayat and others v. Inspector- General of Police (Punjab), Lahore and others” (PLD 2005 Lah 470). Learned Ex-Officio Justice of Peace neither considered the police report nor applied the correct law, thus, the impugned order is liable to be set aside.

1. For the reasons mentioned above, the writ is issued and the impugned order dated 19.01.2016 is hereby set aside.

(Y.A.) Petition allowed

PLJ 2020 Lahore 332

Present: Ch. Muhammad Iqbal, J.

FARZANA AKRAM etc.--Petitioners

versus

NASEEM AKHTAR etc.--Respondents

C.R. No. 11815 of 2019, decided on 17.12.2019.

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

----Ss. 42 & 54--Civil Procedure Code, (V of 1908), S. 115, O.XXXIX, Rr. 1 & 2--Muslim Family Law Ordinance, 1961, S. 4--Suit for declaration and permanent injunction--Application for interim injunction was dismissed--Appeal--Dismissed--Death of son during life time of father--Petitioners was dispossessed from suit property--Balance of convenience--Challenge to--Grandfather of Petitioner No. 2 was owner of suit property, which was allegedly gifted to Respondent No. 1--As per Section 4 of Muslim Family Laws Ordinance, 1961, after death of Muhammad Tufail, Petitioner No. 2 is entitled to get her share being daughter of his pre-deceased son, as such, prima-facie balance of convenience lies in favour of petitioners--Petitioners fulfilled criteria as prescribed under law and if respondents/defendants changed nature and character of suit property and alienated same, then petitioners would suffer irreparable loss--But both Courts below without considering aforesaid aspects of matters declined to grant petitioners temporary injunction, which orders are not sustainable in law--Respondents are restrained to alienate or to change nature and character of suit property till final disposal of main suit--However, learned trial Court is directed to decide case within a period of six months from date of receipt of this order--Revision petition was allowed.

[PP. 333 & 334] A & B

Mr. Adnan Saeed Sindhu, Advocate for Petitioners.

Pir Muhammad Latif, Advocate for Respondents.

Date of hearing: 17.12.2019.

Order

Through this revision petition the petitioners challenged the order dated 15.05.2018 passed by the learned Civil Judge, Lahore whereby the application for ad-interim injunction filed by the petitioners/plaintiffs was dismissed and the order dated 27.11.2018 passed by the learned Addl. District Judge, Lahore, who dismissed the appeal of the petitioners.

1. Brief facts of the case are that the petitioners/plaintiffs filed suit for declaration with permanent injunction alleging therein that grandfather of Petitioner No. 2 namely Muhammad Tufail son of Muhammad Boota was owner of suit property details whereof is mentioned in para 2 of the plaint, died on 15.11.2014. Muhammd Asif, father of Petitioner No. 2 died during the life time of Muhammd Tufail. After the death of Muhammad Tufail, Defendant No. 1 dispossessed the petitioners form the suit property and now they are living with the parents of Petitioner No. 1 in Tehsil Pattoki district Kasur. It was also asserted that the dowry articles of Petitioner No. 1 are in possession of the respondents. The Petitioner No. 1 filed suit for recovery of dowry articles which is still pending. It was the case of the petitioner that Muhammad Tufail who was residing in the house with the respondents under their pressure gifted the suit property through Mutation No. 4100 dated 28.11.2013, which was challenged by the petitioners through filing the aforesaid suit. Alongwith the suit, the petitioners also filed application under Order XXXIX Rules 1 and 2, CPC. The respondents contested the suit as well as the application through filing written statement and written reply respectively. The learned trial Court after hearing both sides dismissed the application vide order dated 15.05.2018. Against the said order, the petitioners/plaintiffs filed appeal, which also was dismissed by the learned Addl. District Judge, Lahore vide order dated 27.11.2018, hence the present revision petition.

2. I have heard the learned counsel for the parties and gone through the available record with their able assistance.

4. Admittedly, Petitioner No. 2 is daughter of Muhammd Asif, predeceased son of Muhammad Tufail, who was owner of the suit property at the time of his death. The petitioners only prayed that the respondents be restrained not to alienate the suit property and also not to change the nature and character of the suit property during the pendency of the suit. If the respondent/defendants went on alienating the suit property during the pendency of lis, that would cause the multiplicity of litigations. The suit for maintenance filed by the petitioner was decreed but till to date no maintenance was paid. The grandfather of Petitioner No. 2 was owner of the suit property, which was allegedly gifted to Respondent No. 1. As per Section 4 of the Muslim Family Laws Ordinance, 1961, after the death of Muhammad Tufail, Petitioner No. 2 is entitled to get her share being daughter of his pre-deceased son, as such, prima-facie the balance of convenience lies in favour of the petitioners. The petitioners fulfilled the criteria as

prescribed under the law and if the respondents/defendants changed the nature and character of the suit property and alienated the same, then the petitioners would suffer irreparable loss. But both the Courts below without considering the aforesaid aspects of the matters declined to grant the petitioners temporary injunction, which orders are not sustainable in law.

5. For the foregoing reasons, the instant revision petition is allowed. The orders dated 15.05.2018 and 27.11.2018 passed by both the Courts below are set aside. Resultantly the application for ad-interim injunction filed by the petitioners is accepted and the respondents are restrained to alienate or to change the nature and character of the suit property till final disposal of the main suit. However, the learned trial Court is directed to decide the case within a period of six months from the date of receipt of this order.

(Y.A.) Revision petition allowed

PLJ 2020 Lahore 334 [Multan Bench Multan]

Present: Rasaal Hasan Syed, J.

MUHAMMAD RAMZAN--Petitioner

versus

JUDGE FAMILY COURT, TEHSIL MIAN CHANNU DISTT. KHANEWAL and 3 others--Respondents

W.P. No. 10934 of 2019, decided on 2.10.2019.

Constitution of Pakistan, 1973--

----Art. 199--Family Courts Act, (XXXV of 1964), S. 17(A)(2)--Suit for recovery of maintenance allowance--Decreed--Failing of reconciliation efforts--Default in payment of interim maintenance allowance--Non filling of written statement--Duty of Family Court--Obligations of paying interim maintenance allowance--Conduct of petitioner--Challenge to--Family Court is under a duty to fix interim monthly maintenance for wife or child on first date of appearance of defendant which in this case--Interim maintenance was duly fixed; @ Rs. 2,000/- per minor while no interim maintenance was granted qua Respondent No. 2--As per statutory provision if defendant fails to pay interim maintenance fixed by 14th day of each calendar month, defence of defendant shall be struck off and Family Court shall decree suit for maintenance on basis of averments in plaint and other supporting documents on record of case--Not one but several opportunities were given to petitioner/defendant to discharge obligations of paying interim maintenance allowance to minors as fixed and directed vide order dated 08.12.2018--This included 16.2.2019, 13.3.2019, 08.4.2019, 23.4.2019, 06.5.2019 and finally entire day from morning till closing hours of 27.5.2019--This appears to be already over-generous as opportunity to comply with a direction of Court dated 08.12.2018--Under circumstances Family Court; does not appear to have been left with any justification not to proceed to implement mandate of Section 17-A of Act in face of manifest lack of cooperation and obedience to judicial directive--Policy of law under circumstances does not lean in favour of interference unless a case is made out--Given conduct of petitioner/defendant and in light of inflationary trends and keeping in view rights of children in view, it appears that order passed is a reasonable and fair one and does not suffer from any material illegality or irregularity as to warrant interference in discretionary jurisdiction of this Court--Petition was dismissed. [Pp. 338 & 339] A, B, C & D

Ch. Muhammad Ashraf Sandhu, Advocate for Petitioner.

RanaMuhammad Nazeer, Advocate for Respondents.

Date of hearing: 2.10.2019.

Order

This Constitutional petition has been filed against order dated 27.5.2019 passed under Section 17-A of the Family Courts Act, 1964 (the “Act”) whereby a decree for maintenance allowance was issued in favour of the respondents and against the petitioner.

1. Facts in brief are that the marriage between the petitioner and Respondent No. 2 was solemnized on 04.12.2013 which did not work out; two children, Muhammad Atif and Muhammad Azan, were born out of the wedlock. Respondent No. 3 filed a suit for recovery of maintenance allowance wherein maintenance allowance was claimed @ Rs. 15,000/- per month per person while suit for restitution of conjugal rights was instituted by the petitioner. WakalatNama was filed on behalf of the petitioner/defendant on 08.12.2018 and on that date interim maintenance allowance pursuant to Section 17-A of the Act was fixed @ Rs. 2,000/- per monthvide order dated 08.12.2018. Pre-trial reconciliation proceedings were held pursuant to Section 10 and ultimately on 27.5.2019 it was concluded that reconciliation efforts between the parties had failed. As petitioner had badly defaulted in payment of interim maintenance allowance of the minors fixedvide order dated 08.12.2018 pursuant to Section 17-A of the Act decree was passed thereby allowing maintenance @ Rs. 4,000/- per person with 20% annual increase w.e.f. institution of the suit till legal entitlement. The order dated 27.5.2019 is under challenge in this Constitutional petition.

2. Learned counsel for the petitioner has argued that the petitioner is now willing to deposit the interim maintenance allowance and that being a salaried person the maintenance allowance decreed is unreasonable and, therefore, the petitioner deserves an opportunity to defend the suit. Contrariwise learned counsel for the respondent has supported the order passed and argued that the maintenance allowance decreed is reasonable, fully commensurable with the needs of the minors and not beyond the means of the petitioner/defendant.

3. The documents placed on record have been perused with the assistance of the learned counsel. The parties, it appears entered into matrimony on 04.12.2013 but the marriage did not work out. Two sons sprung from the wedlock including Muhammad Atif and Muhammad Azan. Respondent No. 2 filed a suit for recovery of past and future maintenance allowance for herself and the two minors @ Rs. 15,000/- per head alongwith annual increase @ 50%. The petitioner filed a suit for restitution of conjugal rights. Vide order dated 08.12.2018, Judge Family Court Mian Channu directed the defendant to pay maintenance allowance to the minors @ Rs. 2000/- per minor to be paid by 14th of each calendar month and the case was adjourned for payment of interim maintenance to 09.1.2019. On 09.1.2019 the case could not be taken up due to strike and was relisted for 10.1.2019 on which date order-sheet indicates that Rs. 4,000/- were paid by the petitioner to Respondent No. 2 as interim maintenance allowance of Respondent Nos.3 and 4, minors. Even on 10.1.2019 lawyers were on strike and proceedings were adjourned to 28.1.2019. Thereafter the case was adjourned for 16.2.2019 and then to 13.3.2019. In the order passed on 13.3.2019 it was observed that neither written statement had been filed nor payment of interim maintenance allowance was mad. The following note of warning was struckin the order dated 13.3.2019:--

“...Today the case in hand was fixed for submission of written statement as well as written reply by defendant but the same has not been filed. The counsel for the defendant has requested for an adjournment to submit written statement as well as written reply. In the interest of justice, as per request of counsel for the defendant an adjournment is hereby granted with the note of warning that if on the date fixed for written statement as well as written reply not submitted then the right of defense of defendant will be struck off in accordance with law. File come up for submission of written statement as well as written reply from defendant for 29.3.2019 with absolutely last and final opportunity.”

The case was thereafter fixed on 29.3.2019 when written statement was filed and the case was set up for pre-trial reconciliation proceedings. However, interim maintenance as ordered by the Court on 08.12.2018 was still not paid. The case was thereafter adjourned to 08.4.2019, 23.4.2019, 06.5.2019 and ultimately on 27.5.2019 when Respondent No. 2, present in Court for pre-trial reconciliation proceedings for which the case was fixed and for payment of interim maintenance, stated that earlier the case had been adjourned many times but the, petitioner/defendant was lingering on the proceedings and that the minors were not being paid any maintenance allowance. A request was made by the counsel for the plaintiff to initiate penal provision under Section 17-A of the Act. At this point the order records that the petitioner/defendant offered to pay Rs. 4,000/- as interim maintenance allowance but Respondent No. 2 refused to accept the same by stating that the whole outstanding interim maintenance allowance was liable to be paid. It is pertinent to note that the petitioner/defendant was also present in person as recorded in the attendance marked in the order-sheet of that day. The order dated 27.5.2019 recorded as follows:

“... The counsel for defendant made request for an adjournment and stated before the Court that on the next adjourned date defendant will make all the outstanding payment of interim maintenance allowance to the plaintiffs positively. So kindly one last chance may be given him for the sake of justice. The Plaintiff No. 1 along with her counsel stoutly resist and stated before the Court that since last four months not a single penny has been paid to the plaintiffs by the defendant. Upon which the defendant in the interest of justice with the note of warning one single last final opportunity is hereby given to pay the outstanding amount during Court hours today in case of failure the payment of all the outstanding interim maintenance allowance to the plaintiffs the proceedings will be initiated against the defendant in accordance with law ....”

The case was kept in waiting and taken up again on the same day at 11:00 a.m when the order-sheet reflects as follows: -

“Connected with previous interim order sheet:-Present: Maher Zafar Iqbal Dolu Advocate counsel for plaintiff whereas defendant side represented by Mian Muhammad Azam Advocate, Parties in person.

11:00 AM.

“File put after wait. Case called. Parties in person appeared along with their counsels. At the very outset Plaintiff No. 1 stated before the Court that she is not ready to reconcile the matter with the defendant regarding maintenance allowance at any cost and she wants to initiate proceedings against the defendant under penal provision of Section 17-A of West Pakistan Muslim Family Courts Act, 1964 if the defendant failed to pay the outstanding amount of interim maintenance allowance today otherwise she wants to decision after recording of evidence. At this stage defendant shown his helplessness about agreeing with the Plaintiff No. 1, therefore in these circumstances as parties are not ready to reconcile the matter with each other so as pre-trial reconciliation proceedings ended in smoke. Perusal of record and conduct of the parties shows that the marriage between Plaintiff No. 1 and defendant still intact. In the interest of justice now to come up for payment of outstanding interim maintenance allowance and the file be put after wait ...”

The case was thereafter taken up at 2:00 p.m. when the impugned order was passed wherein it was concluded that pre-trial reconciliation proceedings had failed and that since interim maintenance defaulted upon had not been paid till the closing hours of the Court, therefore, pursuant to Section 17-A of the Act the Court was left with no option but to invoke the penal provision. Decree was passed awarding the amount of Rs. 4,000/- per minor per month with annual increase @ 20% from the institution of the suit till legal entitlement and in case of Respondent No. 2 this was subject to performance of conjugal rights during subsistence of marriage.

5. It is observed that under Section 17-A the Family Court is under a duty to fix interim monthly maintenance for the wife or child on the first date of appearance of the defendant which in this case was 08.12.2018. Interim maintenance was duly fixed @ Rs. 2,000/- per minor while no interim maintenance was granted qua Respondent No. 2. As per statutory provision if the defendant fails to pay interim maintenance fixed by the 14th day of each calendar month, the defence of the defendant shall be 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. While doing so Section 17-A(2) allows the Family Court to fix the amount of maintenance higher than the amount prayed for in the plaint due to afflux of time or any other relevant circumstances as well as prescribe the annual increase in the maintenance. It is further provided under Section 17(4) that for the purposes of fixing the maintenance the Family Court may summon relevant documentary evidence from any organization, body or authority to determine the estate and resources of the defendant.

6. In the instant case record indicates that not one but several opportunities were given to the petitioner/defendant to discharge the obligations of paying interim maintenance allowance to minors as fixed and directed vide order dated 08.12.2018. This included 16.2.2019, 13.3.2019, 08.4.2019, 23.4.2019, 06.5.2019 and finally the entire day from morning till closing hours of 27.5.2019. This appears to be already over-generous as opportunity to comply with a direction of the Court dated 08.12.2018. Under the circumstances the Family Court; does not appear to have been left with any justification not to proceed to implement the mandate of Section 17-A of the Act in the face of manifest lack of cooperation and obedience to the judicial directive.

1. The quantum of maintenance allowance has been fixed @ Rs. 4,000/- per minor with 20% annual increase whereas as per salary certificate upon which reliance has been placed the petitioner at that point of time was drawing a salary of Rs. 18,485/-. While decreeing the claim of the respondents the Court has qualified the payment of maintenance allowance to Respondent No. 2 on her performance of conjugal duties, which as per learned counsel from both sides, is of no financial significance as there is no chance of resumption of conjugal relations. It is relevant to state that vide separate order dated 27.5.2019 petitioner’s suit for restitution of conjugal rights was also dismissed.

8. The actual amount claimed was Rs. 15,000/- per head with 50% annual increase which has not been awarded. It appears that the, Court-has awarded reasonable amount keeping in view the inflationary trends for two minors to be able to live with dignity without the presence of their father or support from him. It is also noteworthy that under Section 14 of the Act no appeal lies from decree passed by Family Court for maintenance of Rs. 5,000/- or less per month. It is perhaps for this very reason that the petitioner appears to have directly invoked the Constitutional jurisdiction of this Court. The policy of law under the circumstances does not lean in favour of interference unless a case is made out. Given the conduct of the petitioner/defendant and in light of the inflationary trends and keeping in view the rights of the children in view, it appears that the order passed is a reasonable and fair one and does not suffer from any material illegality or irregularity as to warrant interference in the discretionary jurisdiction of this Court. This petition, in result, being without merit is dismissed.

(Y.A.) Petition dismissed

PLJ 2020 Lahore 340

Present: Shahid Karim, J.

MUHAMMAD ARIF--Petitioner

versus

CHIEF ELECTION COMMISSIONER PUNJAB--Respondent

W.P. No. 29082 of 2015, decided on 1.10.2015.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Local Government (Conduct of Election) Rules, 2013, R. 14(7)--Constitutional petition--Filling of nomination papers--Amendment in nomination papers--Challenge to--Petitioner wants a change in constituency to which he intends to contest elections--This is a sea-change in stance of petitioner and entails an amendment of a substantial nature--Candidates cannot be allowed at their whim to change their constituency at a later stage and once nomination papers have been duly filed--If this were allowed on pretext of Rule 14(7) of Rules, 2013, floodgates of such requests would be opened and this would give a lever in hands of candidates to apply for change of constituency at any stage--This runs counter to essence and spirit of whole body of election Law--Upon a perusal of nomination papers, Ward No. 1 is constituency which has been mentioned as one from which petitioner intends to contest elections--Moreover, proposer and seconder of petitioner have also mentioned Ward No. 1 as ward in which their votes have been entered--Therefore, it does not lie in mouth of petitioner to urge that it was a clerical mistake to mention Ward No. 1 instead of Ward No. 6--Petition was dismissed. [Pp. 341 & 342] A & B

Mr. Munir Hussain Bhatti, Advocate for Petitioner.

Mian Irfan Akram Deputy Attorney General along with Hafiz Adeel, Law Officer for Respondent.

Date of hearing: 1.10.2015.

Order

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 lays a challenge to the order dated 28.09.2015 passed by the Appellate Authority.

1. In essence, the petitioner prays that he be permitted to amend the nomination papers as also that the nomination papers be accepted after they have been so amended. Precisely, the petitioner seeks to amend the nomination papers to the extent of the relevant Ward No. 6 from which the petitioner intends to contest the elections instead of Ward No. 1, which has been mentioned in the nomination papers.

2. The learned counsel for the petitioner relies upon Rule 14 (7) of the Punjab Local Government (Conduct of Elections) Rules, 2013 (Rules, 2013) for the proposition that the Returning Officer shall not reject nomination papers on the ground of any defect which is not of a substantial nature and may allow such defect to be remedied forthwith including an error with regard to the name, serial number in the Electoral Rolls or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in that Electoral Rolls.

4. The reliance of the learned counsel for the -petitioner on Rule 14(7) of the Rules, 2013 is unwarranted and misplaced. Clearly, the Rules, 2013 direct a Returning Officer not to reject the nomination papers on the ground “of any defect which is not of a substantial nature”. However, the plea raised by the petitioner is certainly one which is of substantial nature. In essence, the petitioner wants a change in the constituency to which he intends to contest the elections. This is a sea-change in the stance of the petitioner and entails an amendment of a substantial nature. The candidates cannot be allowed at their whim to change their constituency at a later stage and once the nomination papers have been duly filed. If this were allowed on the pretext of Rule 14(7) of the Rules, 2013, floodgates of such requests would be opened and this would give a lever in the hands of candidates to apply for the change of constituency at any stage. This runs counter to the essence and spirit of the whole body of election Law. It will be tantamount to putting a premium on the misdeed of the erring candidate. This will also involve a subjective assessment of the mental state of a candidate in order to gauge his true intent. Was the mistake made in good faith and clerical in nature or was if actuated by some mischievous design and a contraption? This subjective analysis cannot be left to the discretion of the Returning Officers. Moreover, the words ‘including an error with regard to the name, serial number, in the electoral roll or other particulars of the candidate’ occurring in Rule 14(7) of the Rules, 2013 have to be read ejusdem generis with the words ‘The Returning Officer shall not reject a nomination paper on the ground of any defect of substantial nature’. Therefore, the defect has to be of a like nature. The observations of the Supreme Court of Pakistan in Rana Muhammad Tajammal Hussain v. Rana Shaukat Mahmood (PLD 2007 Supreme Court 277) though in the context of The Representation of the People Act, 1976 are aptly applicable to the case in hand. It was held that:

“10. Thus it is held that the plea of the learned counsel for appellant that permission be accorded to him to substitute the names of the proposer and seconder, at this stage, seems to be not acceptable. Therefore, opinion expressed in the case of Ishaq Dar v. Election Tribunal (KLR 1998 Civil Cases 374) is not approved for the reasons mentioned herein above because of the fact that this provision of law is mandatory in its nature and would have substantial effect on the election, for which schedule is to be announced and any nomination paper found invalid cannot be allowed to be validated afterwards, even in exercise of powers either by the Returning Officer or the Election Tribunal or for that matter High Court of this Court, in terms of Section 14(1) (2) of the Act, 1976. A perusal of this provision also indicates that the powers of the Returning Officer have been controlled for not rejecting the nomination papers on any defect which is not of substantial nature, whereas defect in any submitted nomination papers, duly proposed and seconded by a candidate, is of a substantial nature and provisions of Sections 12 and 14 of the Act, 1976 are mandatory in nature as held in Muhammad Abbas v. Returning Officer 1993 MLD 2509, Qoisir Iqbal v. Ch. Asad Raza 2002 YLR 2401, Asif Khan v. Returning Officer 2003 MLD 230 and Mudassar Qayyum Nahra v. Election Tribunal 2003 MLD 1089. Thus on having approved the principle discussed in these judgments, the earlier judgment in the case of Ishaq Dar (ibid) on the point is not approved.”

5. Upon a perusal of the nomination papers, Ward No. 1 is the constituency which has been mentioned as the one from which the petitioner intends to contest the elections. Moreover, the proposer and seconder of the petitioner have also mentioned Ward No. 1 as the ward in which their votes have been entered. Therefore, it does not lie in the mouth of the petitioner to urge that it was a clerical mistake to mention Ward No. 1 instead of Ward No. 6.

1. In view of the above, this petition is without any merit and is, therefore, dismissed.

(Y.A.) Petition dismissed

PLJ 2020 Lahore 343

[Rawalpindi Bench Rawalpindi]

Present: Kh. Imtiaz Ahmed, J.

GULZADA KHAN etc.--Petitioners

versus

TEHSIL MUNICIPAL ADMINISTRATION JHELUM through ADMINISTRATOR and another--Respondents

C.R. No. 369 of 2006, decided on 17.08.2011

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

----O.XXXIX, Rr. 1 & 2--Temporary injunction, dismissal of--Suit for declaration--Evacuee property--Challenge to--Claim of ownership--Property falls in khasra numbers--Shops were sealed prior to filing of suit—Maintainability--Validity--High Court specifically observed that there was nothing on record to show that property in dispute was treated as evacuee property by competent authority before 1.1.1957--It further observed that demarcation report also shows that property falls in khasra numbers owned by Municipal Committee--It was also observed that petitioners were entered into an agreement with Municipal Committee accepting Municipal Committee as owner of property and their landlord and it was further observed that petitioners cannot be allowed to turn around and challenged same--In this way in above-said writ petition ownership of petitioners was not accepted, so both Courts below rightly by placing reliance upon this order dismissed petition for issuance of temporary injunction. [P. 346] A

Mr. Samad Mahmood, Advocate for Petitioners.

Raja Muhammad Farooq Raza, Adovcate for Respondents.

Date of hearing: 17.8.2011

Order

Through this civil revision the order dated 20.05.2006 passed by the learned Civil Judge Class-I, Jhelum whereby the application for issuance of temporary injunction was dismissed and the order dated 12.6.2006 passed by the learned District Judge, Jhelum whereby the appeal was dismissed have been challenged.

1. The relevant facts for the disposal of this civil revision are that petitioners who are 16 in number filed a suit for declaration, permanent and mandatory injunction against the respondent. The claim of the plaintiffs was that property Bearing No. 5-V-II-2-S/8 Bano Bazar, Jhelum was treated as evacuee property by Rehabilitation authorities. The Municipal Corporation moved the petition challenging the said order whereby the said property was treated as evacuee but the said petition was dismissed and so in the year 1974 the petitioners applied for the allotment and property was allotted to the petitioners on 17.6.1974 and PTD was issued. The appeal of the Municipal Committee was also dismissed. Thereafter the Municipal Committee moved an ejectment petition before the Rent Controller, which was also dismissed and appeal before the appellate Court was also dismissed. Thereafter the Municipal Committee tried to take possession of the land and the petitioners filed suit which was decreed. Thereafter the Municipal Committee issued a notice under Martial Law Regulation No. 821 to the petitioners that they were un-authorized occupants, which was challenged in the High Court and since the matter relates to the factual inquiry, so the High Court dismissed the petition of the petitioners on the ground that the matter should be agitated before the Civil Court but the petitioners moved a petition for leave to appeal before the August Supreme Court which was withdrawn on the ground that the matter would be agitated before the Civil Court, so the present suit was filed. The prayer was that the petitioners are owners in possession and respondent be restrained to challenged their possession or to dispossess them. Along with the main suit the application for temporary injunction was moved praying therein that till the final disposal of the suit the order for maintaining the status quo be issued in all respects.

2. The suit as well as application was resisted by the TMA who maintained that Additional Commissioner (Settlement) had decided the matter in favour of Municipal Committee and the matter was agitated by the petitioners before the High Court and the High Court declared the petitioners to be their tenants and their claim of ownership was not accepted. Thereafter the petitioners filed a petition for leave to appeal before the August Supreme Court which was withdrawn. The learned trial Court dismissed the petition on the basis of decision of High Court and the same is the case of appellate Court as mentioned above and dismissed the appeal, so, the present civil revision.

3. Learned counsel for the petitioners almost agitated the same points as mentioned above and contended that the petitioners had prima facie case and balance of convenience leans in their favour and if they would be dispossessed, they would suffer irreparable loss and placed reliance upon “Syed Israr Ahmad through L.Rs. and others vs. Muhammad Shafi through LRs and others” (1997 SCMR 1934). During the pendency of this civil revision, the petitioners also moved C.M. No. 538-C-2011 with the prayer that the shops be unlocked which had been put under seal in illegal and unauthorized manner. On this petition he contended that even if the petitioners were tenants, the respondent was not authorized to seal the shops and at the most he could file an ejectement petition against the tenants.

4. Learned counsel for the respondent, on the other hand, supported the impugned orders of both the Courts below and also contended that the shops were sealed prior to filing of the suit.

5. Be that as it may, the fact remains that the main civil revision pertains to the interim order whereby the application for temporary injunction was dismissed by both the Courts below.

6. As far as the matter which came up for hearing before the High Court, the contention of learned counsel for the petitioner is that writ petition was dismissed by the High Court on the ground that the matter should be agitated before the Civil Court. Copy of this Writ Petition No. 793-1994 is available on the record, which was decided on 12.3.2002 along with the other writ petition since common question of facts and law was involved. The perusal of this order shows that in the said writ petition the disputed property was also involved. Para-5 of the said judgment for convenience is reproduced as under:--

“I have gone through the impugned order and documents attached with these petitions. Admittedly, the petitions have been filed after more than 8 years and badly suffer from laches. It is inconceivable that the order dated 1.1.1986 passed by the Deputy Administrator (Residual Property) was kept hidden for more than eight years. There is nothing on record to show that the property in question was treated an evacuee property by the competent authority before 1.1.1957 i.e. the target date under the Pakistan Administration of Evacuee Property Act, 1957. The remand order dated 30.01.1984 by which the case was remanded for demarcation to see whether the property was owned by the Municipal Committee or was evacuee property was not challenged and attained finality. The demarcation report clearly shows that the property falls in Khasra number owned by the Municipal Committee. Even otherwise the demarcation being a question fact cannot be challenged in the constitutional jurisdiction. The petitioners entered into an agreement with the Municipal Committee accepting the Municipal Committee as owner of property and

other land lord. On the basis of the agreements reached between the petitioners and the Municipal Committee the civil suits were disposed of. The petitioners can not be allowed to turn around and challenge the same. The contention of the petitioners that the agreement was entered into under duress is not acceptable. There is no evidence on record to this effect. Even otherwise it is a question of fact which can not be gone into for the annulment of the agreement.”

8. Perusal of the above-said para clearly shows that High Court specifically observed that there was nothing on record to show that the property in dispute was treated as evacuee property by the competent authority before 1.1.1957. It further observed that demarcation report also shows that property falls in khasra numbers owned by the Municipal Committee. It was also observed that the petitioners were entered into an agreement with the Municipal Committee accepting the Municipal Committee as owner of the property and their landlord and it was further observed that the petitioners cannot be allowed to turn around and challenged the same. In this way in the above-said writ petition the ownership of the petitioners was not accepted, so both the Courts below rightly by placing reliance upon this order dismissed the petition for issuance of temporary injunction.

1. As far as C.M. No. 538-C-2011 is concerned with regard to sealing of the property, this dispute does not relate to the present controversy and petitioners had the remedy to challenge it before the competent Court of law, if so, advised and petition before this Court is not maintainable and same also stands dismissed.

2. In view of what has been said above this civil revision has no force and the same stands dismissed.

(M.M.R.) Civil revision dismissed

PLJ 2020 Lahore 346 (DB)

Present: Muhammad Tariq Abbasi and Ch. Mushtaq Ahmad, JJ.

FAWAD HASSAN FAWAD--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law, justice and Human Rights, Islamabad and 3 others--Respondents

W.P. No. 74858 of 2019, heard on 21.01.2020.

Constitution of Pakistan, 1973--

----Art. 199--Petition for grant of post-arrest bail--Dismissed--Civil petition before Supreme Court of Pakistan--Filling of reference--Delay in trial--Petition was withdrawn--Assessment of assets--Arrest at inquiry stage--Non-framing of charge--Bail grant of--According to ground (c), Mst. Rubab Hassan (wife), Waqar Hassan (brother) and Mst. Anjum Hassan (sister-in-law/BHABHI) of petitioner, being owner of lily Fehmida Yaqoob Construction (FYC) Company (Pvt) Ltd., owned a plaza, known as “The Mall” Rawalpindi, worth Rs. 5 Billion--Firstly no concern or nexus of petitioner with above mentioned company and plaza has been established on record and secondly NAB while assessing whole of assets of petitioner and his family members as 1089 Million had rebutted above said price, of property--In reference no evidence had been annexed, suggesting any property, in name of petitioner--Similarly, there was no cogent or convincing evidence, on record that petitioner had purchased any property from any vendor and got it transferred--Undisputedly, above named relatives of petitioner are directors/share holders, in above said company (FYC) as well as another known as “M/s. Sprint Services (Pvt) Ltd”, who are also owners of certain assets but they had categorically alleged that they had acquired assets by their own means and not through petitioner, in any manner whatsoever--Furthermore, NAB has badly failed to bring on record, any evidence to effect that actually for purchase of above said properties, payments were made to vendors by petitioner--Petitioner without cogent and convincing evidence/material, regarding any link or nexus, with above mentioned business/properties, owned by above named co-accused has been arrested, even at inquiry stage--Petitioner for last about 01 year and 07 months, without any progress in case has been noticed--As till date even charge has not been framed, against petitioner and his co-accused--Consequently, petitioner could not be kept, behind bars for an indefinite period--Petition was allowed.

[Pp. 349 & 350] A, B, C, D & E

M/s. Ashtar Ausaf Ali, Azam Nazir Tarrar, Barrister Asad Rahim Khan, Muhammad Amjad Pervaiz and SalmanSarwar Rao Advocates for Petitioner.

Syed Faisal Raza Bukhari, Special Prosecutor NAB with Usman Iftikhar, Assistant Director, NAB Lahore/I.O for State/NAB.

Date of hearing: 21.01.2020.

Order

Muhammad Tariq Abbasi J.--By way of instant writ petition, the petitioner, namely, Fawad Hasan Fawad seeks his release on bail, in Accountability Reference No. 21 of 2019.

1. The petitioner, during pendency of an inquiry, was arrested by the NAB on 05.07.2018, on the basis of following grounds and allegations:--

“Following facts from basis for immediate arrest of the accused:--

a. That accused Fawad Hassan Fawad being public office holder, acquired huge assets disproportionate to his known sources of income.

b. That the accused through his family members has executed a deed for purchase of commercial plot amounting to Rs. 500 Million approx in Rawalpindi which, prima facie, is disproportionate to his known sources of income.

c. That dependent of the accused (his wife), sister-in-law and the brother of the accused have no significant sources of income yet they are the owners of M/s. Fehmida Yaqoob Construction (FYC) Company (Pvt) Ltd. which owns a 15-floor plaza “The Mall” Rawalpindi worth Rs. 5 Billion (approx), which is prima facie, disproportionate to known sources of income of the accused.

d. The accused maintains more than 14x bank accounts in his own name and in the name of his dependents / benamidars, having credit inflow of over Rs. 50 Million, which does not commensurate with his disclosed source of income.

e. That accused was given fair chance to explain sources of funds used for acquisition of assets however he could not offer any plausible explanation.

f. That arrest of the accused is essential to procure further evidence, detection of hidden assets, relevant incriminating material and recovery of crime proceeds.”

1. Consequently, the petitioner for his release on bail had preferred a Writ Petition No. 229141 of 2018 and decided on 14.02.2019, as dismissed.

2. Thereafter the petitioner for the same relief had approached the august Supreme Court of Pakistan, through Civil Petition No. 648-L of 2019. By that time a reference was filed, against the petitioner and he had also alleged delay in trial, hence through order dated 03.12.2010, the petition was withdrawn with the following reasons and grounds:

“Upon reconsideration the learned counsel for the petitioner wishes to withdraw this petition so as to advise the petitioner to approach the High Court again on two stated fresh grounds for bail, i.e. filing of a Reference against the petitioner and delay in conclusion of his trial. This petition is, therefore, disposed of as having been withdrawn.”

Consequently, the petition in hand has been preferred on the grounds alleged in the petition and reiterated during the arguments.

The record shows that during the proceedings, subsequent to the inquiry, the NAB had failed to substantiate the above mentioned grounds of arrest, due to the following reasons:--

i) In Para (a), of the grounds of arrest, it was alleged that the petitioner had acquired huge assets, disproportionate to his known sources of income but no such asset, in the name of the petitioner could be dug out and highlighted in the reference.

ii) In ground (b), value of the property was described as 500 Million but in the reference it was stated as 78.5 million and nothing had been brought on the record that it was purchased or acquired, through any amount, paid by the petitioner.

iii) According to ground (c), Mst. Rubab Hassan (wife), Waqar Hassan (brother) and Mst. Anjum Hassan (sister-in-law/BHABHI) of the petitioner, being owner of M/s. Fehmida Yaqoob Construction (FYC) Company (Pvt) Ltd, owned a plaza, known as “The Mall” Rawalpindi, worth Rs. 5 Billion. Firstly no concern or nexus of the petitioner with the above mentioned company and the plaza has been established on the record and secondly the NAB while assessing whole of the assets of the petitioner and his family members as 1089 Million had rebutted the above said price, of the property.

iv) In ground (d), 14 bank accounts, maintained by the petitioner and his family members were alleged but the reference is silent to that extent.

5. Admittedly, in the reference no evidence had been annexed, suggesting any property, in the name of the petitioner. Similarly, there was no cogent or convincing evidence, on the record that the petitioner had purchased any property from any vendor and got it transferred, in name of his above named relatives as benamidar.

6. Undisputedly, the above named relatives of the petitioner are directors/share holders, in the above said company (FYC) as well as another known as “M/s. Sprint Services (Pvt) Ltd”, who are also owners of certain assets but they had categorically alleged that they had acquired the assets by their own means and not through the petitioner, in any manner whatsoever. Furthermore, the NAB has badly failed to bring on the record, any evidence to the effect that actually for purchase of the above said properties, the payments were made to the vendors by the petitioner.

7. The above named relatives of the petitioner, having the above mentioned properties have also been arrayed as accused, in the reference, without any arrest and as such they are appearing in proceedings of the reference, while at large. But the petitioner without cogent and convincing evidence/material, regarding any link or nexus, with the above mentioned business/properties, owned by the above named co-accused has been arrested, even at inquiry stage.

8. On one hand, the above mentioned facts and circumstances are before the Court, whereas on the other hand, confinement of the petitioner for the last about 01 year and 07 months, without any progress in the case has been noticed. As till date even charge has not been framed, against the petitioner and his co-accused. Consequently, the petitioner could not be kept, behind the bars for an indefinite period.

1. For what has been discussed above, the writ petition in hand is allowed and it is directed that the petitioner be released on bail subject to his furnishing bail bonds in the sum of Rs. 1,00,00,000/- (Rupees ten million only), with two sureties each, in the like amount, to the satisfaction of the learned Trial/Duty Accountability Court, Lahore.

(Y.A.) Petition allowed

PLJ 2020 Lahore 351 [Rawalpindi Bench, Rawalpindi]

Present: Muhammad Farrukh Irfan Khan, J.

MUNAWAR HUSSAIN and 2 others-- Petitioners

versus

PROVINCE OF PUNJAB through Secretary, Local Government Lahore and others--Respondents

W.P. No. 5321 of 2010, decided on 26.11.2012.

Constitution of Pakistan, 1973--

----Arts. 25 & 199--Industrial & Commercial Employment (Standing Orders), 1968, S.O. 1(1)(b)--Appointment & transfer--Representations for regularization of service--Entitlement for regularization--Fundamental right--Discrimination--Refusal of relief--Violation of--Direction to--Petitioners have served respondent- department for more than two decades without any service break against posts regarding which nowhere it has been argued that same are not of permanent nature--It has also not been denied by respondents that posts against which petitioners were appointed continued for more than nine (9) months--In this view of matter, petitioners have attained status of “workmen” as defined in Standing Order 1 (1) (b) of Industrial & Commercial Employment (Standing Orders)-Ordinance, 1968 and they are entitled to regularization of their services--During course of arguments AAG as well as counsel representing Respondent No. 4 could not rebut argument of counsel for petitioners that services of certain similarly placed employees have already been regularized under orders of this Court--Petitioners being at par with them cannot be treated discriminately and refused identical relief--Respondents are directed to regularize services of Petitioner No. 1/Munawar Hussain w.e.f. date of his initial appointment--Petitioners No. 2/Seraj-ul-Munir and Petitioner No. 3/Younas Masih, who have already been retired r from service, on attaining age of superannuation, shall also be deemed to have been regularized from date of their initial appointments and they will receive such retirement benefits which are admissible to regular employees--Petitions was allowed. [Pp. 353 & 354] A, B, C & D

2010 PLC (CS) 409 and 1996 SCMR 1185 ref.

Raja Muhammad Khan, Advocate for Petitioners.

Raja Muhammad Farooq Raza, Advocatefor Respondent Nos. 4 to 6.

Raja Shaid Mehmood Abbasi, AAG for Respondents.

Date of hearing: 26.11.2012.

Judgment

Through this single judgment I intend to dispose of Writ Petition No. 5321 of 2010 and Writ Petition No. 5326 of 2010 as common question of law and fact is involved in both these petitions.

1. Brief facts of the case are that Petitioners No. 1 and 2 (in W.P.No. 5321/2010) were appointed as Tube-well Operators in the year 1984 and 1983, respectively while Petitioner No. 3 was appointed as Sewer man on 4.7.1988 in Housing & Town Planning Agency, Jhelum. In Writ Petition No. 5326/2010, Petitioner No. 1 was appointed as Driver on 1.3.1982, Petitioners No. 2 and 3 were appointed as Skilled Qulies on 2.6.1984 and 11.7.1984, respectively, in Housing & Town Planning Agency, Rawalpindi. As asserted in the writ petitions, all the petitioners were appointed on work-charge basis in Housing & Town Planning Agency but later on w.e.f. 1.1.1995 they were transferred to Tehsil Municipal Administration, Jhelum where they are presently serving. It is claimed by the petitioners that they have been rendering services continuously for a long period consisting over more than 22 years without any break but they have not been regularized. They also made representations to the respondents for regularization of their services but of no avail. The petitioners further submitted that services of certain similarly placed employees have been regularized by the respondents in compliance with the orders passed by this Court as well as Islamabad High Court. Through the instant writ petition, they are seeking a direction to the respondents for regularization of their services.

2. The respondents in their report and parawise comments submitted that the petitioners were appointed purely on work-charge basis and their services could not be regularized. It has further been submitted that Petitioner No. 2/Seraj-ul-Munir and Petitioner No. 3/Younas Masih have been retired on attaining the age of superannuation in December, 2010 and Petitioner No. 1 is still serving.

3. The learned counsel for the petitioners contended that the petitioners have been serving since 1983 without any break in their, service and as per law they are entitled to be treated as permanent employees by regularization of their services. Learned counsel further contended that services of a large number of work-charge employees have already been regularized by the respondents under orders of this Court and the petitioners are being treated discriminately, which is against the fundamental right of equality guaranteed by the Constitution. In support of his argument, he has referred to the judgments passed by this Court in W.P. No. 1262/05 and W.P. No. 811/2006.

4. The learned AAG as well as learned counsel for Respondent No. 4 have opposed both the writ petitions, on the grounds that work-charge employees are paid on daily basis and they cannot claim regularization of their services.

5. I have heard the learned counsel for the parties and have also gone through the record.

7. Admittedly the petitioners have served the respondent- department for more than two decades without any service break against the posts regarding which nowhere it has been argued that the same are not of permanent nature. It has also not been denied by the respondents that the posts against which the petitioners were appointed continued for more than nine (9) months. In this view of the matter, the petitioners have attained the status of “workmen” as defined in Standing Order 1(1)(b) of the Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 and they are entitled to regularization of their services. Reliance in this regard is placed on the case of Director Admin, and Finance, WASA and others v. Allah Yar and others (2010 PLC (C.S.) 409).

8. During the course of arguments the learned AAG as well as the learned counsel representing Respondent No. 4 could not rebut the argument of the learned counsel for the petitioners that services of certain similarly placed employees have already been regularized under the orders of the Hon’ble High Court. A perusal of the copy of the judgments placed on record by the learned counsel for the petitioners reveals that in the similar circumstances certain employees enjoying the same status of being “work-charge” have been allowed regularization of service. In this view of the matter the petitioners being at par with them cannot be treated discriminately and refused the identical relief. In forming this opinion, this Court is fortified with the judgment of the Hon’ble Supreme Court of Pakistan, pronounced in the case of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185) wherein it has been held by the Hon’ble Supreme Court of Pakistan:

“When Tribunal or Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of the Civil servant who litigated, but also of other civil servants, who may have not taken any legal proceedings, the

dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to other Civil servants who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum.”

The above principle is equally applicable to the case of the present petitioners, who are also entitled to the same relief as declining the same would result in discrimination, which is in violation of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.

9. As a corollary of the above discussion, both the afore-noted petitions are allowed and the respondents are directed to regularize the services of Petitioner No. 1/Munawar Hussain w.e.f. the date of his initial appointment. Petitioners No. 2/Seraj-ul-Munir and Petitioner No. 3/Younas Masih, who have already been retired from service, on attaining the age of superannuation, shall also be deemed to have been regularized from the date of their initial appointments and they will receive such retirement benefits which are admissible to regular employees. The respondents shall comply with this order within a period of one month, under intimation to this Court through the Deputy Registrar (Judl.), Rawalpindi Bench of this Court. The parties are left to bear their own costs.

(Y.A.) Petition allowed

PLJ 2020 Lahore 354

Present: Ch. Muhammad Masood Jahangir, J.

AHTISHAM ELAHI and another--Petitioners

versus

INSRAM ELAHI, and another--Respondents

C.R. No. 12039 of 2020, decided on 27.2.2020.

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

----S. 115 & O.XLVII R. 1--Suit for partition of property--Decreed--Civil revision--Dismissed--Review application--Declined--Right of audience--Limitation--Condonation of delay--Challenge to--As per law, 90 days were available to petitioners to make an application for its review, but they without filing application for condonation of delay tabled review application on 30.09.2019 much beyond prescribed period of limitation--Order under review was passed on 28.05.2019, whereas after losing 87 days on 24.08.2019, Application Form No. 29787 was filed before concerned agency for having attested copy, which delivered on 31.08.2019,.while after losing another 29 days, review petition was made on 30.09.2019, as such it, on face of record, was beyond prescribed 90 days--Counsel for petitioners failed to persuade that any wrong, material irregularity or illegality was committed by lower Revisional Court to pass impugned order, rather it was rendered while application of judicious mind and exercising jurisdiction so vested--This petition being meritless is dismissed in limine--Revision petition was dismissed. [Pp. 355 & 356] A, B & D

Limitation Act, 1908 (IX of 1908)--

----S. 5--Civil Procedure Code, (V of 1908), S. 151--Condonation of delay--Inherent powers--It is well settled that submission of formal application u/s. 5 of Limitation Act, 1908 is essential for enabling a Court to, if at all, condone delay in filing such like petition and without it, there could be no power to excuse delay, which cannot be condoned by resort even to inherent powers provided u/S. 151 of Code, 1908. [P. 356] C

1984 SCMR 200; 1986 SCMR 1624; 1999 SCMR 2353; 2000 SCMR 1028 and PLJ 2005 SC 1002 ref.

Raja Tassawar Iqbal, Advocate for Petitioners.

Date of hearing: 27.2.2020.

Order

This litigation is inter se the family members, out of whom Respondent No. 1 instituted suit for partition of joint property against the petitioners and being aggrieved of order dated 24.01.2019 passed by the learned Civil Judge, present petitioners preferred Civil Revision No. 435/2019 before the learned District Court, Lahore, which was dismissed on 28.05.2019. Although it was not assailed before any forum however, Petitioners No. 1 & 2 preferred review application under Order XLVII, Rule 1 of the Code, 1908 for setting aside of said order before the same Court, which declined on the score of limitation through impugned order dated 01.02.2020, hence this civil revision.

1. Heard and record scanned.

3. Undisputedly, the petitioners at their own preferred afore- noted civil revision and after availing right of audience, it finally failed on 28.05.2019. As per law, 90 days were available to the petitioners to make an application for its review, but they without filing application for condonation of delay tabled review application on 30.09.2019 much beyond prescribed period of limitation. The argument of learned counsel for the petitioners that the days consumed for obtaining certified copies were to be excluded, but without making any drill work to this effect, the impugned order was passed, is not well-founded and when with his able assistance, the record was consulted to adjudge that how many days were consumed, it appeared that order under review was passed on 28.05.2019, whereas after losing 87 days on 24.08.2019, Application Form No. 29787 was filed before the concerned agency for having attested copy, which delivered on 31.08.2019, while after losing another 29 days, the review petition was made on 30.09.2019, as such it, on the face of record, was beyond prescribed 90 days. The argument of learned counsel for petitioners that law favours adjudication of cases on merit and technicalities should be avoided to dispense with justice, as such the Court at its own could condone the delay is not tenable. It is well settled that submission of formal application under Section 5 of the Limitation Act, 1908 is essential for enabling a Court to, if at all, condone the delay in filing such like petition and without it, there could be no power to excuse the delay, which cannot be condoned by resort even to the inherent powers provided u/S. 151 of the Code, 1908. Reliance in this behalf can be placed on the judgments reported as Ansar Burney vs. Federation of Pakistan and others (1984 SCMR 200) Mullah Ahmed vs. Assistant Commissioner, Sibi and 7 others (1986 SCMR 1624), Messrs Qureshi Salt & Spices Industries, Khushab and another vs. Muslim Commercial Bank Limited, Karachi through President and 3 others (1999 SCMR 2353), Government of Baluchistan, Public Health Engineering Department through Secretary, (Administrative Head) Project Director, Akra Kour Dam Project, Baluchistan, Quetta vs. (2000 SCMR 1028) and Honda Atlas Cars (Pakistan) Ltd. vs. Honda (Sarhad) (Pvt) Ltd. and others (PLJ 2005 SC 1002). Furthermore, the said count cannot be taken as technicality, rather it goes to very roots of the case and once on said lapse, vested right is accrued to the adversary, it cannot be taken away easily thereafter. The learned counsel for the petitioners failed to persuade that any wrong, material irregularity or illegality was committed by the learned lower Revisional Court to pass the impugned order, rather it was rendered while application of judicious mind and exercising the jurisdiction so vested. This petition being meritless is dismissed in limine.

(Y.A.) Revision petition dismissed

PLJ 2020 Lahore 357

[Rawalpindi Bench Rawalpindi]

Present: Mamoon Rashid Sheikh, J.

MADRISSA HANFIA MAJADADIA TALEEM-UL-QURAN (BANAIN & BINAAT) through President--Petitioner

versus

GOVERNMENT OF PUNJAB through Commissioner Rawalpindi and others--Respondents

W.P. No. 209 of 2013, decided on 8.2.2017.

Constitution of Pakistan, 1973--

----Art. 199--Imparting education--Construction of Madrissah--Application for approval of site-plan/NOC--Declined by District Mosque Committee--Report of intelligence agencies--Affiliation with banned organization--Determination of questions of fact--Remedy of appeal--Decision of mosque committee was not challenged--Maintainability--It is settled law that this Court in exercise of its constitutional jurisdiction normally does not determine questions of fact--Moreover, counsel for petitioner has been unable to justify non-exhaustion of remedy of appeal before approaching this Court in its constitutional jurisdiction--He has similarly failed to establish that remedy of appeal was neither efficacious nor speedy in facts and circumstances of case--Another aspect of case and that is to effect that subsequent to passing of impugned decision of District Mosque Committee, Jhelum, dated 14.09.2011, District Planning and Design Committee, Jhelum, in its meeting, held on 24.09.2011, rejected approval of site-plan of Madrissah due to non-clearance by District Mosque Committee, Jhelum--Annexure-C to report and parawise comments refers--As will be clear from prayer clause quoted in Para 1, above, petitioner does not appear to have challenged said decision of District Planning & Design Committee, Jhelum--Petition is, therefore, not maintainable on this score also--Petition was dismissed.

[P. 361] A & B

Mr. Pervaiz Ahmed Awan, Advocate for the Petitioner.

Mr. Rashid Hafeez, Addl. Advocate-General, Punjab for Respondents.

Raja Muhammad Farooq Raza, Advocate for Respondent No. 4.

Date of hearing: 8.2.2017.

Order

MAIN CASE

C.M No. 1-C/2013. C.M. No. 1763/2014.

The instant petition has been filed by the petitioner through its president stating therein it is a Madrissah which was founded in the year 1962. The petitioner was duly registered under the Societies Registration Act, 1860, with the Registrar Joint Stock Companies, Jhelum, on 14.10.2006. The petitioner is affiliated with Wafaq-ul-Madaras Al-Arabia, Pakistan. The petitioner is engaged in imparting education to the local students. The petitioner was operating from an old building, however, with the passage of time the building became old and dilapidated. In the meantime, the number of students of the petitioner increased, therefore, the residents of the village earmarked a piece of land in the village for construction of the new building of the petitioner and also created a waqf in this respect. The petitioner started construction of its new building, however, in the year 2009 the Tehsil Municipal Administration Jhelum (Respondent No. 4) served a notice upon the petitioner requiring it to stop construction of its new building on the ground that the petitioner had not obtained the requisite sanction of its site-plan. The petitioner stopped its construction work and through the letter, dated 01.09.2009, duly informed Respondent No. 4 about the stoppage of work. Thereafter, on 07.09.2009, the petitioner moved an application for approval of the site-plan of its new building. The matter kept on pending till the year 2011, when on 11.07.2011 a meeting of the District Mosque Committee, Jhelum, was held in the office of Respondent No. 2 and it was decided that the requisite NOC be issued to the petitioner, however, through the impugned Letter/Order No. F-226/4126/HC(G), dated 26.09.2011, issued by Respondent No. 2, the petitioner has been informed that in its meeting held, on 14.09.2011, the District Mosque Committee declined to issue the requisite NOC for construction of the Madrissah. The petitioner has, therefore, prayed as under:

“... submitted that the impugned order passed by the District Co-ordination Officer Jhelum dated 26.09.2011 in connection with the meeting of Mosque committee dated 14.09.2011 being mala fide, illegal, void and against the constitutional fundamental right may please be set aside and respondents may please be directed to sanction the site-plan of the petitioner and to restrain them not create any hindrance in construction of the educational institution of the petitioner ...”

1. The learned counsel for the petitioner submits that the impugned letter/order dated 26.09.2011, which is based on a decision of the District Mosque Committee, meeting held, on 14.09.2011, is mala fide, illegal and void given the fact that previously in its meeting held, on 11.07.2011, the District Mosque Committee decided that the NOC for construction of the Madrissah may be issued to the petitioner.

2. Submits that the petitioner has been performing the function of imparting education to the students of the locality since the year, 1962. The petitioner is duly registered with the relevant Authorities, however, the respondents have illegally and mala fide withheld the requisite NOC to construct the new building of the Madrissah. Prays that a direction may be issued to the respondents to accord the necessary NOC in accordance with the law.

3. The learned Addl. A-G., refers to the report and parawise comments. Submits that initially the petitioner undertook the construction of its new building/Madrissah without obtaining the requisite NOC from the District Mosque Committee and/or approval of its site-plan by Respondent No. 4. However, upon receipt of the petitioner’s application for issuance of the NOC and sanctioning of the site-plan it was forwarded to the TO (P&C) for a report. Thereafter the application of the petitioner, along with the report of the TO (P&C) of Respondent No. 4, was forwarded to the District Coordination Officer/Chairman District Mosque Committee, Jhelum (Respondent No. 2). It was further decided to place the matter before the District Planning and Design Committee, Jhelum, in terms of the Punjab Land Use (Classification, Reclassification and Redevelopment) Rules, 2009, to the extent of approval of the site-plan. The matter was further considered and it was decided in the meeting of the District Mosque Committee, held on 11.7.2011, that the requisite NOC for construction of the Madrissah may be issued, however, since the issue of the approval of the site-plan of the Madrissah was pending with Respondent No. 4, therefore, it was decided that its approval be discussed in the meeting of District Planning and Design Committee, Jhelum, to be held shortly (Copy Annexure-A to the report and parawise comments).

4. Further submits that the next meeting of the District Mosque Committee was held, on 14.09.2011, wherein the case of the petitioner was taken up again. The participants of the meeting were informed by Respondent No. 2 that a report from the Intelligence Agencies had been received, according to which the petitioner’s president and one of its office bearers, namely Qari Shabbir and Hafiz Abdul Jabbar, respectively, are both affiliated with the Sipah-e-Sahaba Pakistan, a banned organization. It was further informed that Hafiz Abdul Jabbar had received Jihadi training from Kashmir and Afghanistan and had currently joined the MQM. The meeting was further informed that the construction of a large basement in the proposed building had also created doubts in the minds of the local residents. (The petitioner/Madrissah was based in Village Sukha, Tehsil & District Jhelum. In the said Village only 3 or 4 houses of persons belonging to the Deobandi school of thought existed whereas the remaining population belongs to the Brailvi school of thought. As a consequence, grave concern had been expressed by the majority population about establishment of the Madrissah. The meeting was further informed that the construction of the Madrissah could lead to a conflict between persons belonging to the Deobandi and Brailvi schools of thought in the village. The meeting was also informed that the proposed Madrissah is located right next to the main road which is the convoy route for transporting ammunition from COD Kala to the rest of Pakistan, therefore, the possibility of hindrance to the communication network of COD Kala could not be ruled out (Copy Annexure-B to the report and parawise comments).

5. Submits that the report/matter was discussed at length in the meeting and the Committee unanimously resolved that the NOC, which was granted to the petitioner for construction of the Madrissah, on 15.07.2011, may be withdrawn, with immediate effect (Copy Annexure-B to, the report and parawise comments.

6. Further submits that the matter of the approval of the site-plan of the new building of the Madrissah came up before the District Planning & Design Committee, Jhelum, on 24.09.2011. And in view of the decision of the Mosque Committee, Jhelum, dated 14.09.2011, the District Planning & Design Committee, Jhelum, rejected the approval of the site-plan of the Madrissah due to non-clearance by the District Mosque Committee, Jhelum (Copy Annexure-C to the report and parawise comments).

7. Further submits that in the above circumstances the requisite NOC cannot be granted to the petitioner. Further submits that the petition is, even otherwise, not maintainable as the petitioner has not exhausted the statutory remedy of appeal before approaching this Court.

8. The learned counsel for Respondent No. 4 adopts the arguments of the learned Addl. A-G., and prays for dismissal of the petition.

9. The learned counsel for the petitioner calls into question the veracity of the report of the Intelligence Agencies. He reiterates his earlier arguments and submits that the petitioner is performing a public service in the form of imparting education to the local students. The refusal by the respondents to grant the requisite NOC is not warranted under the law.

11. I have considered the arguments of the learned counsel for the petitioner, the learned Addl. A-G., and the learned counsel for Respondent No. 4. I have also gone through the record with their assistance. The learned counsel for the petitioner has questioned the stance of the respondents maintained by them through the report and parawise comments. To say the least this amounts to the petition being based on disputed questions of fact. It is settled law that this Court in the exercise of its constitutional jurisdiction normally does not determine questions of fact. Moreover, the learned counsel for the petitioner has been unable to justify the non-exhaustion of the remedy of appeal before approaching this Court in its constitutional jurisdiction. He has similarly failed to establish that the remedy of appeal was neither efficacious nor speedy in the facts and circumstances of the case.

12. There is another aspect of the case and that is to the effect that subsequent to the passing of the impugned decision of the District Mosque Committee, Jhelum, dated 14.09.2011, the District Planning and Design Committee, Jhelum, in its meeting, held on 24.09.2011, rejected the approval of the site-plan of the Madrissah due to non-clearance by the District Mosque Committee, Jhelum. Annexure-C to the report and parawise comments refers. As will be clear from the prayer clause quoted in Para 1, above, the petitioner does not appear to have challenged the said decision of the District Planning & Design Committee, Jhelum. The petition is, therefore, not maintainable on this score also.

1. Under the circumstances, I am not persuaded to intervene in the matter. The petition is accordingly dismissed with the observation that the petitioner may pursue the alternative remedies, available to it, under the law, if so advised.

(Y.A.) Petition dismissed

PLJ 2020 Lahore 362

Present: Rasaal Hasan Syed, J.

Mst. SHAHEEN BIBI--Petitioner

versus

PERVAIZ ASLAM and others--Respondents

W.P. No. 16408 of 2020, decided on 17.6.2020.

Constitution of Pakistan, 1973--

----Art. 199--Specific Relief Act, (I of 1877), S. 42--Suit for declaration--Death of plaintiff during pendency of suit--Impleadment of legal heirs--Controversy regarding status of petitioner--Exclusion off name of petitioner from list of legal heirs--Civil revision-- Dismissed--Opportunity of evidence--Rule of natural justice--Challenge to--It is observed that trial Court simply relied upon objections raised and proceeded to direct filing of amended pleadings by excluding Shaheen Bibi and incorporating names of Khursheed Bibi and legal heirs of Muhammad Atif--Revisional Court also affirmed order with observation that petitioner may assail divorce deed in civil Court and adopt independent remedy for relief--Parties were seriously involved in factual controversy and therefore learned trial Court could not casually accept one side’s viewpoint or non-suit petitioner without any inquiry or opportunity of evidence--It was only due to this reason that counsel for respondents did not contest course proposed for disposal of controversy, by remitting matter to Court below and for decision after framing of issue and opportunity of evidence to parties--Impugned order on face of it was violative of rule of natural justice and due process--Courts below committed serious error of law in causally denying petitioner right to present her case and by excluding her from proceedings--Petition was allowed.

[Pp. 363 & 364] A, B & C

Raja Tasawer Iqbal and Ms. Ammara Liaquat Bhatti Advocates for Petitioner.

Syed Muhammad Shah, Advocate for Respondent No. 2.

Date of hearing: 17.6.2020.

Order

This Constitutional petition calls into question 20.4.2019 and 24.1.2020 whereby the name of the petitioner was excluded from the name of the list of legal heirs and the order was affirmed in revision.

1. Late Muhammad Javed instituted a suit for declaration with consequential relief. During the pendency of the suit he died on 21.6.2018. At the time of impleadment of his legal heirs controversy arose with regard to the status of the petitioner as his widow. On 14.3.2019 Syed Muhammad Shah, Advocate, recorded his statement without oath to the effect that Shaheen Bibi had been divorced allegedly by Muhammad Javed vide divorce deed dated 17.2.1999 and being so she could not fall in the list of legal heirs. On 20.4.2019 the learned civil judge passed the order to the effect that amended pleadings be filed by incorporating names of legal heirs except Shaheen Bibi, petitioner. This order was challenged in civil revision by the petitioner which was dismissed by the learned Addl. District Judge vide order dated 24.1.2020.

2. Learned counsel for the petitioner submitted that the petitioner was already a party in the proceedings and that without any investigation or inquiry her name was excluded from the list of legal heirs on the based on forged divorce deed, original documents of NADRA were excluded, and the petitioner was not allowed the right of cross-examination to the opposing counsel whose statement was considered to be sacrosanct unjustifiably. Submits that the controversy could only be resolved by framing issues and recording of evidence and that the petitioner could not be directed to file a suit for declaration. Lastly, it was argued that the learned Addl. District Judge did not consider the actual requirement of law and illegally ignored that the order was against the rule of natural justice and due process. Learned counsels for the respondents in the course of arguments did not oppose the proposition that the controversy should be resolved through issues and evidence.

4. After hearing learned counsel for the parties in attendance it is observed that the learned trial Court simply relied upon the objections raised and proceeded to direct the filing of amended pleadings by excluding Shaheen Bibi and incorporating the names of the Khursheed Bibi and legal heirs of Muhammad Atif. The revisional Court also affirmed the order with the observation that the petitioner may assail the divorce deed in the Civil Court and adopt the independent remedy for relief.

1. It is manifest that the Courts below proceeded, on mere assumption as to the genuineness of the disputed divorce deed and put the petitioner under an onus to seek a declaration from the Court of law; little appreciating that there was a serious factual controversy. Petitioner specifically denied the genuineness of the document, respondents were banking upon the said document and were obviously under an obligation to prove the document to be genuine and it was

only after the proof of the document that the petitioner could be excluded from the proceedings. Another factor was that the petitioner was relying on the original NADRA record which in her perception contradicted the stance of the respondents. In these circumstances, it was obvious that the parties were seriously involved in factual controversy and therefore the learned trial Court could not casually accept one side’s viewpoint or non-suit the petitioner without any inquiry or opportunity of evidence. It was only due to this reason that the learned counsel for the respondents did not contest the course proposed for the disposal of the controversy, by remitting the matter to the Court below and for decision after framing of issue and opportunity of evidence to the parties.

6. Even otherwise the impugned order on the face of it was violative of the rule of natural justice and due process. The Courts below committed serious error of law in causally denying the petitioner the right to present her case and by excluding her from the proceedings. For the reasons above, this writ petition is accepted, the impugned orders are declared to be without lawful jurisdiction and accordingly annulled. In result, the case is remanded to the learned Civil Judge who shall frame an issue on the controversy as to the status of the petitioner as legal heir of the deceased Muhammad Javed, allow evidence to both sides and decide the matter afresh on the basis of evidence to be produced and in accordance with law.

(Y.A.) Petition accepted

PLJ 2020 Lahore 364 [Rawalpindi Bench, Rawalpindi]

Present: Raja Shahid Mehmood Abbasi, J.

GHULAM SUGHRA (Widow)--Petitioner

versus

ADDITIONAL SESSIONS JUDGE JHELUM and 4 another--Respondents

W.P. No. 2586 of 2016, decided on 27.02.2017.

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

----Ss. 133 & 139(a)--Constitution of Pakistan, 1973, Art. 199--Filling of application--Allowed--Revision petition--Dismissed--Use of street--Installation of iron gate--Creation of public nuisance--Pendency of revision petition--Maintainability--Respondent No. 5 filed application u/S. 133, Cr.P.C. before learned Area Magistrate Police Station Saddar Jhelum, alleging there that he is residwent of Mohalla Haidry Block-D Bilal Town Jhelum and street under use of Mst. Sughra Bibi, petitioner, belongs to T.M.A. Jhelum and she installed an iron gate there, hence since June 2014 a public nuisance has been created--Learned Magistrate after hearing both parties allowed said application and ordered petitioner to remove obstruction/metal gate and revision petition filed by with permanent injunction filed by present petitioner and legal heirs of her husband Raja Azmat Ullah, regarding property is pending adjudication before civil Court and said Court after obtaining documentary and oral evidence will be in better position to decided controversial issue and regulate same in accordance with law and application u/S. 133, Cr.P.C. was not maintainable and learned Magistrate was debarred from issuing any direction--Petition allowed. [P. 366] A

2013 PCr.LJ 1076 ref.

Mr. Abid Hussian Abid, Advocate for Petitioner.

Mr. Nadeem Akhtar Bhatti, A.A.G. for Respondent.

Raja Muhammad Farooq Raza, Advocate/Legal Advisor T.M.A.

Mr. Hamid Rasheed Gondal, Advocate for Respondent No. 5.

Date of hearing: 27.2.2017.

Order

Through this writ petition, the petitioner Ghulam Sughra assails the vires of order dated 22.09.2016 passed by learned Additional Sessions Judge Jhelum whereby he dismissed the revision petition against the order dated 28.06.2016 passed by learned Magistrate 1st Class Jhelum.

1. Brief facts of the case are that Respondent No. 5/applicant filed application u/S. 133 Cr.PC. before learned Area Magistrate Police Station Saddar Jhelum, that the street under the use of present petitioner belongs to T.M.A. Jhelum and is a public way and the same is adjacent to his residential house, which has been blocked by the petitioner since June 2014, creating public nuisance. Learned Magistrate after hearing both the parties allowed the said application and ordered the petitioner to remove obstruction/metal gate. Aggrieved by the said order the petitioner filed revision petition before the learned Additional Sessions Judge which was dismissed as mentioned above. Hence this writ petition.

2. Learned counsel for the petitioner contends that that the impugned orders are against the law and facts; that the same have been passed without observing Section 139-A Cr.P.C; that the learned Courts below did not apply judicial mind while passing the impugned orders; that civil litigation was already pending adjudication between the parties; that Respondent No. 5 has nothing to do with the property owned and possessed by the petitioner; that even Respondents No. 1 to 4 failed to perform their legal duty under the law.

3. On the other hand learned counsel for Respondent No. 5 has opposed the contentions raised by learned counsel for the petitioner on the ground that the Courts below have concurrently decided the issue against the petitioner and passed well reasoned orders, which need no interference by this Court in exercise of constitutional jurisdiction.

5. I have heard the learned counsel for the parties and gone through the documents appended with this petition. Record reveals that Respondent No. 5 filed application u/S. 133, Cr.P.C. before learned Area Magistrate Police Station Saddar Jhelum, alleging there that he is resident of Mohalla Haidry Block-D Bilal Town Jhelum and the street under the use of Mst. Sughra Bibi, petitioner, belongs to T.M.A. Jhelum and she installed an iron gate there, hence since June 2014 a public nuisance has been created. Learned Magistrate after hearing both the parties allowed the said application and ordered the petitioner to remove obstruction/metal gate and revision petition filed by the with permanent injunction filed by present petitioner and legal heirs of her husband Raja Azmat Ullah, regarding the property is pending adjudication before the Civil Court and the said Court after obtaining the documentary and oral evidence will be in better position to decided the controversial issue and regulate the same in accordance with law and the application u/S. 133 Cr.P.C. was not maintainable and the learned Magistrate was debarred from issuing any direction. See Dr. Karamat Hussain vs. Shams-ud-Din and 5 others (2013 P.Cr.L.J. 1076).

1. The nutshell of the above discussion is that this writ petition is allowedand the impugned orders dated 28.06.2016 and 22.09.2016 passed by the Courts below are set aside.

(Y.A.) Petition allowed

PLJ 2020 Lahore 367 [Rawalpindi Bench, Rawalpindi]

Present: Ibad-ur-Rehman Lodhi, J.

SAEEDA FATIMA--Petitioner

versus

CHAIRMAN, ARBITRATION COUNCIL and others--Respondents

W.P. No. 1105 of 2018, decided on 4.6.2018.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Notice of divorce--Without verification of Pakistan Embassy--Pendency of connected criminal original--Restraining order--Proceedings for issuance of divorce effectiveness certificate--Initiation of contempt of Court proceedings--Right of divorce--Challenge to--Inspite of referred restraint order, respondents proceeded to issue divorce effectiveness certificate on 14.01.2018, whereas in view of material now made available on record, not only on file of present writ petition, but also on file of connected Criminal Original, it is but clear that at least Respondent No. 1 was made to know issuance of restraint order by this Court in evening of 13.04.2018, nevertheless Respondent No. 1 and 2 proceeded to issue divorce effectiveness certificate on 14.04.2018, whereupon separate proceedings under Contempt of Court Laws were initiated through Criminal Original No. 93-\V of 2018 against Respondents No. 1 and 2--It is an admitted position that notice of divorce sent by Respondent No. 3 was not duly verified by Pakistan Embassy in Saudi Arabia--Issuance of notice without intervention of Pakistan Embassy in Saudi Arabia and all proceedings carried out on basis of said notice before Arbitration Council, are declared to have been issued and carried out without lawful authority--Impugned divorce effectiveness certificate issued on 14.04.2018 is also declared null and void and same is set aside--Right of divorce can directly be exercised by husband, who is Respondent No. 3, if at all he wanted to put an end to matrimonial relationship in between him and present petitioner strictly in accordance with Muslim Family Laws Ordinance, 1961--Petition was allowed.

[Pp. 368 & 369] A, B, C & D

Ch. Imran Hassan Ali, Advocate for Petitioner.

Mr. Shafqat Munir Malik, Additional Advocate-General Punjab.

Raja Muhammad Farooq, Advocate for Respondents No. 1 and 2.

Date of hearing: 4.6.2018.

Order

Although this petition is not fixed for today, but on account of pendency of connected Criminal Original No. 93-W of 2018 in between the same parties, the present petition, which is clubbed with referred criminal original petition, is ordered to be listed for hearing today.

1. Muhammad Sharif Qureshi-Respondent No. 3, who is husband of present petitioner and residing in Saudi Arabia, sent notice of divorce stated to have been issued to his wife/present petitioner, in the office of Arbitration Council through registered post and on receipt of such notice, the respondents started proceedings. Such proceedings culminated by Respondents No. 1 and 2 have been called in question by the present petitioner through the present Constitutional petition.

When this petition came up for hearing before this Court on 13.04.2018, after hearing learned counsel for the petitioner, notices were ordered to be issued to the respondents and following order was passed on CM. No. 01 of 2018:

“3. Issue notice for 14th of May, 2018. In the meanwhile, no further proceedings will take place before the Arbitration Council, till the next, date of hearing.”

Inspite of referred restraint order, the respondents proceeded to issue divorce effectiveness certificate on 14.04.2018, whereas in view of material now made available on record, not only on the file of present writ petition, but also on the file of connected Criminal Original, it is but clear that at least Respondent No. 1 was made to know the issuance of restraint order by this Court in the evening of 13.04.2018, nevertheless Respondents No. 1 and 2 proceeded to issue divorce effectiveness certificate on 14.04.2018, whereupon separate proceedings under Contempt of Court Laws were initiated through Criminal Original No. 93-W of 2018 against Respondents No. 1 and 2.

3. It is an admitted position that notice of divorce sent by Respondent No. 3 was not duly verified by Pakistan Embassy in Saudi Arabia and in a similar matter, such notice was held defective by this Court in case titled “Romana Zahid versus Chairman Arbitration Council/Nazim Union Council and another’ (PLD 2010 Lahore 631).

Contrary thereto, Respondent No. 3 also executed special power of attorney in favour of his real brother Khalid Mehmood

Qureshi, which was surprisingly duly verified by Pakistan Embassy. Through such special attorney, Khalid Mehmood Qureshi was only appointed by Respondent No. 3 as his arbitrator and no power was given to said attorney to participate in arbitration proceedings, make any statement regarding reconciliation or otherwise etc. Thus, issuance of notice without intervention of Pakistan Embassy in Saudi Arabia and all proceedings carried out on the basis of said notice before the Arbitration Council, are declared to have been issued and carried out without lawful authority. The impugned divorce effectiveness certificate issued on 14.04.2018 is also declared null and void and the same is set aside.

The right of divorce can directly be exercised by the husband, who is Respondent No. 3, if at all he wanted to put an end to matrimonial relationship in between him and present petitioner strictly in accordance with Muslim Family Laws Ordinance, 1961.

1. Resultantly, the present Constitutional petition is allowed as prayed for.

(Y.A.) Petition allowed

PLJ 2020 Lahore 369

Present: Jawad Hassan, J.

M/s. CRAFTSMAN (PRIVATE) LIMITED--Petitioner

versus

COLLECTOR OF CUSTOMS, MODEL CUSTOMS COLLECTORATE, SIALKOT and 3 others--Respondents

W.P. No. 24833 of 2020, decided on 8.6.2020.

Constitution of Pakistan, 1973--

----Arts. 4, 10(a), 18 & 199--Income Tax Act, 1969, S. 194--Constitutional petition--Issuance of show-cause notice--Order for payment of duty and taxes--Pendency of Appeal--Challenge to--Right of fair trial--It is settled law that unless matter is decided by at least one independent forum outside revenue hierarchy, recovery of disputed amount cannot be made--I am inclined to grant, as a stop gap measure, temporary relief to Petitioner by directing Respondent No. 3 to decide appeal of Petitioner within a period of two months in accordance with law/Act from receipt of certified copy of this order--Petition was disposed of. [Pp. 370 & 371] A & B

Mr. Muhammad Akram Nizami, Advocate for Petitioner.

Ms. Sadia Malik,Assistant Attorney General (on Court’s call).

Mr. Qamar-uz-Zaman Cheema, Advocate for Customs Department (on watching brief).

Date of hearing: 8.6.2020.

Order

Learned counsel for the Petitioner submits that after serving show-cause notice dated 06.09.2018, whereby he was required to pay certain amount on account of duty and taxes, an order-in-original dated 03.01.2019 was passed against him by Deputy Collector (Adjudication), Lahore. Being aggrieved of the said order, the Petitioner preferred an appeal which was dismissed by the Collector of Customs (Appeal), Customs House, Lahore vide order dated 08.05.2019 (the “impugned order”). Then, the Petitioner moved another appeal in terms of Section 194 of the Income Tax Act, 1969 (the “Act”) alongwith stay application, which is pending before the Customs Appellate Tribunal, Lahore, Respondent No. 3, unattended but now the Respondents concerned are adamant to take coercive measures against the Petitioner under the garb of the impugned order by initiating recovery proceedings, due to which his fundamental rights of trade and business guaranteed under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) will be impinged. He maintains that under the Doctrine of Ripeness, the matter before Custom Authorities has not been ripened because entire machinery and procedure is provided for adjudication of disputes before the appellate forum and the Petitioner can only approach this Court in Custom Reference under Section 196 of the Act. Learned counsel next argues that it is settled law that unless the matter is decided by at least one independent forum outside the revenue hierarchy, the recovery of the disputed amount cannot be made. He has placed reliance on the judgments reported as M/s. Pak Saudi Fertilizers Ltd. versus Federation of Pakistan and others (2002 PTD 679), Z.N. Exports (Pvt.) Ltd. versus Collector Sales Tax etc. (2003 PTD 1746), Messrs Pearl Continental Hotel, Lahore through Director Finance and another versus Customs, Excise and Sales Tax Appellate Tribunal, Lahore and another (2005 PTD 1368), Sun-Rise Bottling Company (Pvt.) Limited versus Federation of Pakistan and 4 others (2006 PTD 535), Karachi Shipyard and Engineering Works Limited, Karachi versus Additional Collector, Customs, Excise and Sales Tax (Adjudication-III), Government of Pakistan, Karachi and 2 others (2006 PTD 2207), Pak Suzuki Motors Co. Ltd, through Senior General

Manager (Corporate Planning & Logistics), Karachi versus Collector of Customs through Assistant Collector (Processing), Karachi (2006 PTD 2237) and Mari Petroleum Company Ltd., versus Appellate Tribunal Inland Revenue and others (2016 PTD 2406) wherein direction was issued to the authorities to decide the appeal and temporary relief was granted as stopgap measures.

1. Furtherance to the petitioner’s case, his learned counsel submits that Article 4 of the Constitution clearly states that it is an inalienable right of every citizen to be treated in accordance with law and no action detrimental to life, reputation or liberty of any person shall be taken except as per law and in the case in hand the relevant law is the Act. He lastly, submits that Article 10-A of the Constitution provides right of fair trial and due process for determination of rights and obligations therefore, during the pendency of matter, if any action is taken under the garb of impugned order, the Petitioner will suffer an irreparable loss and injury.

3. After hearing learned counsel for the parties and in view of the law laid down in aforesaid judgments, I am inclined to grant, as a stop gap measure, temporary relief to the Petitioner by directing the Respondent No. 3 to decide appeal of the Petitioner within a period of two months in accordance with law/Act from the receipt of certified copy of this order. However, till the decision of appeal, no coercive measures for recovery of disputed amount shall be taken against the Petitioner by the Respondents.

Disposed of.

(Y.A.) Petition disposed of

PLJ 2020 Lahore 371 [Rawalpindi Bench, Rawalpindi]

Present: Shams Mehmood Mirza, J.

TARIQ MAQSOOD and others--Petitioners

versus

MUNICIPAL CORPORATION etc.--Respondents

W.P. No. 2466 of 2019, decided on 16.9.2019.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Local Government Act, (XIII of 2019), Ss. 306 & 315--Execution off rent agreement for five years--End of period of tenancy--Assessment of rent--Publishing of notice regarding auction of shops--Determination--Arbitration clause--Enhancement of rent--Appointment of administrator--Right to participation--Maintainability--Clause 10 of rent agreement executed between parties contains an arbitration clause according to which any dispute under terms of agreement is to be resolved by District Coordination Officer--Indisputably, petitioners are aggrieved by decision of committee enhancing amount of rent of shops in question--The dispute inter se parties is relatable to Arbitration clause--It is settled law that writ cannot be issued in respect of contracts in which there is an arbitration clause--It is, however, clear that Local Governments is not functional at moment and is being run by administrator appointed by Provincial Government--By a combined reading of Sections 306 and 316 of Punjab Local Government Act, 2019, Administrators have validly been appointed under said provisions--The challenge to .authority and power of Administrator by petitioners is misplaced--Be that as it may, petitioners have right to either participate in auction or to match highest bid made in regard to said shops--Petitions dismissed.

[P. 373] A & B

2000 CLC 373; 2000 CLC 1923; 2001 YLR 734 and 2000 PTD 478 ref.

MalikGhulam Mustafa Kandwal Advocate for Petitioner.

Raja Muhammad Farooq Raza Legal Advisor, TMA.

Mr. Meesam Abbas, Administrator/ADCR Jhelum.

Date of hearing: 16.9.2019.

Order

This writ petition calls into question the meeting of District Assessment Committee, Jhelum held on 01.06.2019 and publication of auction notice dated 24.8.2019 for putting to auction the leasehold rights of various shops.

This order shall also decide Writ Petitions No. 2469 of 2019, 2470 of 2019 and 2471 of 2019 in which similar facts have been pleaded and same relief has been sought as in this writ petition.

1. The petitioners are tenants of the shops under the Municipal Corporation Jhelum. It is submitted that the Deputy Commissioner held a meeting on 01.06.2019 in which assessment of the rent of various shops was determined. Consequently, a notice was published in daily newspaper for putting to auction various shops including those of the petitioners.

2. Learned counsel submits that till date no notice for enhancement in the rent as determined by the Deputy Commissioner was served on the petitioners. In is furthermore pleaded that the Administrator, Municipal Corporation or the Deputy Commissioner had no authority to assess the rent or to put to auction the shops in question.

3. It is apparent that the rent agreement between the parties was executed in the year 2013 for a period of five years. The period of tenancy has come to an end. It is furthermore apparent that the dispute between the parties relates to the assessment of rent which, was determined in the meeting held on 01.06.2019. Today, the Administrator, Municipal Corporation Jhelum who was present in the Court stated that the rent of the shops in question was determined by a committee which had taken into the account the recommendations made by the Excise and Taxation Department as well as that Revenue Staff. It was furthermore stated that there was a huge difference between the rent being paid by the petitioners and the rent determined by the committee. As a result, it was decided to put the lease of the shops to auction with option to the petitioners to match the highest bid.

5. Clause 10 of the rent agreement executed between the parties contains an arbitration clause according to which any dispute under the terms of the agreement is to be resolved by the District Coordination Officer. Indisputably, the petitioners are aggrieved by the decision of the committee enhancing the amount of rent of the shops in question. The dispute inter se the parties is relatable to the Arbitration clause. It is settled law that writ cannot be issued in respect of the contracts in which there is an arbitration clause (see Muhammad Naeem v. District Council Pakpattan 2000 CLC 373, Haji Muhammad Akhtar v. Zila Council, Hafizabad 2000 CLC 1923, KaamyConstruction Co. v. WAPDA through Chairman etc 2001 YLR 734 and Muhammad Ansar v. Administrator, Town Committee 2000 PTD 478).

6. A challenge to the authority of the Administrator was also made through this writ petition for proceedings with the auction of the shops in question. It is, however, clear that the Local Governments is not functional at the moment and is being run by the appointed by the Provincial Government. By a combined reading of Sections 306 and 316 of the Punjab Local Government Act, 2019, the Administrators have validly been appointed under the said provisions. The challenge to the authority and power of the Administrator by the petitioners is misplaced. Be that as it may, the petitioners have the right to either participate in the auction or to match the highest bid made in regard to the said shops.

1. This writ petition as well as connected writ petitions are not maintainable and are accordingly dismissed.

(Y.A.) Petitions dismissed

PLJ 2020 Lahore 374

Present: Ch. Muhammad Masood Jahangir, J.

AHTISHAM ELAHI etc --Petitioners

versus

INSRAM ELAHI etc.--Respondents

C.R. No. 12040 of 2020, decided on 27.02.2020.

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

----S. 115--Suit for separation of share--Consent preliminary decreed--Joint property--Revision petition--Allowed--Direction to restoration of gifted property--Realization was started--Objection petition--Dismissed--Challenge to--Court is equally competent to enforce any order like a decree, therefore, objection petition of petitioners was rightly declined--Advocate for petitioners though tried best to his level, but failed to point out any material irregularity or illegality to be committed by Courts below while passing impugned orders--Had order qua restoration of possession with regard to gifted part of property been challenged in time, position would be otherwise, but having stood final, Court was bound to realize same and petitioners suffered for their own act--Revision petition was dismissed.

[P. 375] A & B

Raja Tassawar Iqbal, Advocate for Petitioners.

Date of hearing: 27.2.2020.

Order

The litigation was boiled out among the members of the family when Respondent No. 1 instituted suit for separation of his share in the joint property through partition against petitioners, which finally was preliminary decreed, consequently local commission was appointed to suggest mode of partition, but his first two reports were discarded and while deciding objections of plaintiff/respondent on third report, vide order dated 24.01.2019, the Court declaring that subject matter was not partitionable ordered for internal auction. The petitioners/ defendants being offended challenged it before learned Revisional Court, who while observing that some other parts of property, which had been independently gifted out to the parties to the lis were also joined by the local commission, as such while allowing the revision petition of the petitioners on 28.05.2019, the third report was annulled as well, however they were directed to handover possession of the gifted property to the respondent/plaintiff, whereas parties to the lis were given choice to purchase the subject matter through internal auction. It admittedly was not challenged, before any higher forum.

Pursuant thereto process for its realization started, which was resisted by the petitioners, but objection petition was dismissed vide order dated 21.10.2019 and further maintained by learned lower Revisional Court through impugned order dated 01.02.2020, hence this civil revision.

1. Heard.

3. It is an admitted fact that a consent preliminary decree was awarded with regard to joint property and the learned District Court vide order dated 28.05.2019 directed the learned Civil Court to restore possession of the gifted property to respondent/plaintiff, which was not assailed any further before the higher forum, whereas a time barred application for its review made before the same Court was not only declined rather today the latter’s order has also been maintained by this Court, as such order dated 28.05.2019 attained finality in all respect and u/S. 36 of the Code, 1908 the Court is equally competent to enforce any order like a decree, therefore, the objection petition of the petitioners was rightly declined.

4. Raja Tassawar Iqbal Advocate for the petitioners though tried best to his level, but failed to point out any material irregularity or illegality to be committed by the Courts below while passing the impugned orders. Had the order qua restoration of possession with regard to gifted part of property been challenged in time, the position would be otherwise, but having stood final, the Court was bound to realize the same and the petitioners suffered for their own act. This petition being meritless is dismissed in limine.

(Y.A.) Revision petition dismissed

PLJ 2020 Lahore 375 (DB) [Rawalpindi Bench, Rawalpindi]

Present: Atir Mahmood and Mirza Viqas Rauf, JJ.

MUHAMMAD NADEEM KHAN and others--Appellants

versus

MUNICIPAL CORPORATION through Administrator, Jhelum and 7 others--Respondents

I.C.A. No. 60 of 2019, decided on 12.11.2019.

Law Reforms Ordinance, 1972 (XII of 1972)--

----Ss. 2 & 3--Filling of writ petitions--Dismissed--Tenancy agreement--Publication for auction of shops in newspapers--Tenancy rights--Proceedings of assessment committee--Arbitration clause--Maintainability--There is no cavil that Section 3 of Law Reforms Ordinance, 1972 (hereinafter referred as “The Ordinance, 1972”) provides remedy of Intra Court Appeal in certain eventualities but no such appeal is available or competent if an application brought before this Court under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 arises out of any proceedings in which law applicable provided for at least one appeal or one revision or one review to any Court, tribunal or authority against original order--Appeals were dismissed. [Pp. 382 & 386] C, D & E

Punjab Local Government, 2019 (XIII of 2019)--

----S. 3(2)--Local Government--Local Government means a local government constituted under subsection (2) of section 3 of this Act. [P. 376] A

Punjab Local Government, 2019 (XIII of 2019)--

----S. 301--Order--Any direction, determination in pursuance to some proceedings like proceedings of District Assessment Committee, resulting into finalization of assessment of rent can be termed as an order contemplated in Section 301 of “The Act, 2019”. [P. 381] B

Malik Ghulam Mustafa Kandwal, Advocate for Appellants.

Mr. Mujeeb-ur-Rehman Kiani, Additional Advocate General for Punjab.

Raja Muhammad Farooq Raza, Advocate for Respondent/TMA.

Date of hearing: 12.11.2019.

Order

Through this single judgment, we intend to decide the instant Intra Court Appeal as well as Intra Court Appeals. No. 61, 65 and 66 of 2019 as in all these appeals, there is a commonality and similarity on question of facts and law. Moreover, all these appeals are arising out of a common judgment dated 16th September, 2019 passed by the learned Single Judge in Chamber in Writ Petitions No. 2466, 2469, 2470 and 2471 of 2019.

1. Facts in brief are that the appellants are holding tenancy rights in the shops owned by the Municipal Corporation, Jhelum. It is claim of the appellants that they are occupying the shops in question since long and regularly paying the rent. The grievance of the appellants starts with a publication in daily newspaper “Express” dated 24th August, 2019 issued by the Respondents No. 2 and 3 under the instructions of Respondent No. 1 for the auction of shops, hotels and buildings etc. of District Jhelum, which includes the shops and buildings under the tenancy of the appellants. The auction was scheduled w.e.f 16th September, 2019 to 25th September, 2019. The appellants in the instant appeal as well as connected appeals voiced their grievance against the proceedings of the District Assessment Committee Jhelum dated 1st June, 2019, the publication dated 24th August, 2019 and auction proceedings through W.P. No. 2471 of 2019, W.P. No. 2469 of 2019, W.P. No. 2466 of 2019 and W.P. No. 2470 of 2019. The matter came up before the learned Single Judge in Chamber, who proceeded to dismiss all the constitutional petitions by way of order dated 16th September, 2019, which is now under challenge in these appeals.

2. Learned counsel for the appellants submitted that the proceedings of the assessment committee were without any lawful authority. He added that District Assessment Committee, Jhelum revised the rent without associating the appellants in the process and as such they have remained condemned unheard. It is contended that the auction proceedings have been launched by the respondents in order to benefit their blue eyed. Learned counsel emphasized that in presence of rent agreement, the respondents were precluded to put on auction the shops/buildings in question. It is argued that the certain material facts escaped notice of the learned Single Judge, which resulted into dismissal of constitutional petitions.

3. Contrary to the submissions made by learned counsel for the appellants, learned Law Officer, at the very outset raised a preliminary objection with regard to the maintainability of these appeals. It is contended that proceedings in question arise out of the Punjab Local Government Act, 2019, which provides remedy of appeal. Learned Law Officer submitted that even otherwise, in terms of arbitration clause in the agreement, the instant appeals are not maintainable.

4. We when confronted this aspect to the learned counsel for the appellants, he submitted that no remedy was available to the appellants against the impugned action of the respondents and even otherwise, there is no order in field against which an appeal would lie.

5. After having heard learned counsel for the appellant and the learned Law Officer, we deem it appropriate to first examine the aspect of competency of these appeals before this Court.

6. It is an admitted fact that properties in question are ownership of Tehsil Municipal Administration, Jhelum. The appellants are holding tenancy rights under an agreement. The grievance of the appellants emerges from a publication issued by the respondents proposing to auction the properties in question through open competition at the rates determined by the District Assessment Committee, Jhelum in its meeting held on 1st June, 2019.

7. The term “Local Government” was defined in Section 2(v) of The Punjab Local Government Act, 2013 as under:

2(v) “Local Government” means a Union Council, a Municipal Committee, a Municipal Corporation, the Metropolitan Corporation a District Council or an authority;

The Punjab Local Government Act, 2013 was, however, repealed through Section 312 of the Punjab Local Government Act 2019 (Act XIII of 2019) wherein all the local governments constituted or continued under the Punjab Local Government Act, 2013 were dissolved and in place Administrators were appointed. The latter Act provides the definition of “local government” in Section 2 (ss) as under:

“local government” means a local government constituted under sub-section (2) of Section 3 of this Act;

For the purpose of clarity, Section 3 of the Act ibid is also reproduced below:

3. Dissolution of existing local governments.--(I) All local governments constituted or continued under the Punjab Local Government Act, 2013 (Act XVIII of 2013) are hereby dissolved, (2). As soon as may be but not later than one year of the commencement of this Act, the Government shall constitute succeeding local governments in accordance with the provisions of Section 15 of this Act.

Section 15 of “The Act, 2019” reads as under:

1. Constitution of local governments.--(1) The Government shall, having regards to the provisions of sub-section (2) of Section 3 of this Act, constitute local governments of various classes in the following manner:--

(a) a Metropolitan Corporation for each Metropolitan;

(b) a Municipal Corporation for each Municipality with a population of not less than two hundred and fifty thousand as per the latest census;

(c) a Municipal Committee for each Municipality with a population of not less than seventy-Five thousand as per the latest census;

(d) a Town Committee for each Town; and

(e) a Tehsil Council for each Tehsil in the Punjab.

(2) Every local government shall be a body corporate having perpetual succession and a common seal, and, subject to the provisions of this Act, shall have power to acquire, hold and transfer property both movable and Immovable, to contract and to do all other things necessary for the purposes of its constitution; and shall by its name sue and be sued.

1. The revision in the rate of rent was made by the District Assessment Committee, Jhelum on the mandate of “The Act, 2019”. Section 301 of the said Act provides remedy of appeal against any order passed by the local government or its officers or servants or other functionaries, The term “Order” used in Section 301 is nowhere defined in “The Act, 2019”. In order to discover the true impact of the term “Order” we thus have to advert to the legal dictionaries. The dictionary meaning of word “Order” in different law dictionaries is given as follows:--

a. The Webster’s New Twentieth Century Dictionary of the English Language Unabridged (Second Edition): “Order “1. To arrange; to organize; to put or keep in order. 2. To regulate; to manage; to subject to rules or laws. 3. To instruct (another) to do something; to direct; to command; as, the general ordered his troops to advance. 4. To deal with; to treat. 5. To ordain; to admit to holy orders. 6. To request (something) to be supplied as, to order a carload of goods.

b. Black’s Law Dictionary (Tenth Edition): “Order” 1.A command, direction, or instruction. 2. A written direction or command delivered by a Government Official esp. a Court or Judge. The word generally embraces final decrees as well as interlocutory directions or commands. Also termed Court order; judicial order.

c. Cambridge Advanced Learner’s Dictionary (4th Edition): “Order” 1. a request to make, supply, or DELIVER food or goods: 2. A product or a meal that has been asked for by a customer: 3, Be on order if something is on order, you have asked for it but have not yet received it 4. Do/make sth to order to do or make something especially for a person who has asked for it: 5. The way in which people or things are arranged, either in relation to one another or according to a particular characteristic; 6. Something that someone tells you you must do; 7. Be under orders to have been told that you must do something by Someone in authority 8. An official instruction telling someone what they can or cannot do. or a written instruction to a bank to pay money to a particular person 9. In order to do sth (also in order that sth) with the aim of achieving something: 10. A situation in which everything is arranged in its correct place. 11. Leave/put sth in order to organize something well; 12. The state of working correctly or of being suitable for use: 13. A situation in which rules are obeyed and people do what they are expected to do: 14. Order. Formal an expression used in parliament or a formal meeting to get people’s attention and make them stop talking, so that the meeting or discussion can short or continue 15. A social or political system; 16. A group of people who join together for religious or similar reasons and live according to particulr rules 17. A group that people are made members of as a reward for services they have done for their country. 18. The type or size of something; 19. Of the order of (UK also in the order of) approximately: 20. Specialized (used in the classification of plants and animals)

d. Oxford Advanced Learner’s Dictionary (New 8th Edition); “Order” 1. The way in which people, or things are placed and arranged in relation to each other, 2. The state of being carefully and neatly arranged: 3. The state that exists when people, obey laws, rules or authority; 4. Instructions, Something that sb is told to do by sb. in authority. 5. Goods. A request to make or supply goods, 6. Goods supplied in response to a particular order that sb has placed. 7. Food/drinks. A request for food or drinks in a restaurant, bar, etc; the food or drink that you ask for; 8, money. A formal written instruction for sb to be paid money or to do sth, 9. System. The way that a society, the world, etc, is arranged with its system of rules and customs: 10. Social class. 11. Biology. A group into which animals, plants, etc. that have similar characteristics are divided, smaller than a class and larger than, a family; 12. Religious community, A group of people living in a religious community, especially monks or nuns; 13. Special honour. A group of people who have been given a special honour by a queen, king, president, etc; 14. A BADGE OR RIBBON worn by members of an order who have been given a special honour, 15. A secret society whose members meet for special ceremonies; Synonyms. Tell instruct. Direct, Command Order to use your position of authority to tell sb to do sth; tell to say to sb that they must or should do sth, Instruct to tell sb to do sth, especially in a formal or official ay; direct to give an official order; command to use your position of authority to tell sb to do sth:

e. Kitabistan’s New Millennium Two-In-One Composite Dictionary; “Order” 1. Tidy arrangement 2. Command by order of, under the orders of (someone’s) orders. 3. Written direction to (on bank, post office, etc,) to pay the stated sum 4. working condition, in good working order, out of order 5. peaceful atmospher (in a meeting or country) by obedience to rules or to the law, law and order of situation in the country 6. Quiet, silence, be called to order (of the President) to call to order 7. Request to supply (goods) an order (for an amount), an made to order. 8. Social status group holding it. 9. Group holding it. 10. Authority to a priest on being ordained take holy orders, in orders that in order (to do something) with a view to (doing it) v.t. 1 Give an order to (someone to do something) 2. Place an order for (goods from someone or from some place) 3 arrange (something) neatly.

After going through various definitions of the word “Order”, we are unanimous that term “Order” used in Section 301 of “The Act, 2019” cannot be circumscribed into a particular form. Any direction, determination in pursuance to some proceedings like the proceedings of the District Assessment Committee, resulting into finalization of the assessment of the rent can be termed as an order contemplated in the Section 301 of “The Act, 2019”.

1. The provisions of Section 301 of “The Act, 2019” are akin and similar to Rule 4 of The Civil Servant (Appeal) Rules, 1977. The Hon’ble Supreme Court of Pakistan in the Case of “Abdul Jabbar and others v. General Manager (Personnel) Pakistan Railways and others (2018 SCMR 64) outlined the term “Order” as under:

“9. Under the circumstances, there has to be an order altering, interpreting to his disadvantage, reducing or withholding maximum pension and allowances of a civil servant for preferring an appeal in terms of Rule 4 of the Civil Servant (Appeal) Rules, 1977. In such grievances/proceedings no particular form of order is required and even pension fixation notices could be treated as an order for the purposes of availing the remedy of appeal under Section 4 of the Civil Servants (Appeal) Rules, 1977. Likewise Section 4 of the Service Tribunals Act, 1973 provides that any civil servant aggrieved by any final order whether original or appellate made by the departmental authority in respect of any of the terms and conditions of his service may within 30 days of the communication of such order to him, prefer an appeal to the Tribunal. The proviso to Section 4 further provides that if an appeal or representation or review preferred to the departmental authority is not decided within a period of 90 days, then such person may prefer an appeal before the Service Tribunal. Consequently, the obvious conclusion which one can draw is that an order which is the root of grievance coupled with an un-responded appeal or representation and/or the order of appellate authority deciding such appeal or representation would entitle a civil servant to approach the Service Tribunal for redressal of his grievance and in this particular case in respect of his pay allowances or pension.”

11. There is no cavil that Section 3 of The Law Reforms Ordinance, 1972 (hereinafter referred as “The Ordinance, 1972”) provides the remedy of Intra Court Appeal in certain eventualities but no such appeal is available or competent if an application brought before the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 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. The scope of proviso to sub-section (2) of Section 3 of “The Ordinance, 1972” when came under consideration before the Hon’ble Supreme Court of Pakistan in the case of “Mst. Karim Bibi and others v. Hussain Bakhsh and another” (PLD 1984 Supreme Court 344), it was ruled as under:

“7. A plain reading of the proviso to sub-section (2) of Section 3 of the Law Reforms Ordinance means that no appeal will be available or competent before a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court in a Constitutional Petition, if” such petition arises out of “any proceedings” in which the law applicable for at least one appeal against the original order. The reference is clearly to the proceedings taken under any Statue which prescribes a hierarchy of officers authorities for the carrying into effect the purposes of such statue including the enforcement of rights, if any, created thereunder. In such a case clearly the law envisages an original order against which the remedy of appeal was provided by the relevant statue. In the facts of the present case the relevant statue is the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which had created a hierarchy of officers to deal with the rights created thereunder in favour of persons entitled under the said Act and the Schemes framed thereunder, inter alia, to the transfer of erstwhile Evacuee Properties from the compensation pool of such properties constituted under the provisions of the Act. By Section 19 of the said Act a right of appeal was provided to the next higher officer in rank from the original order passed by an officer of the settlement establishment. Apart from the remedy of appeal so provided the Act also vested powers of revision in the higher officers of the settlement establishment under Section 20 as well as the power of review. However, by the Evacuee Property and Displaced Persons Laws (Amendment) Act, 1973 which came into force on 30-7-1973 Section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was omitted with the result that remedy of appeal was abolished with effect from the said date. The Constitutional Petition was filed by the first respondent hereinbefore the High Court much later on 8.12.1973 which was allowed by the learned Single Judge on 8-7-1974. The Letters Patent Appeal, as already stated, was presented by the appellants in the High Court on 31-8-1974. It is urged on behalf of the appellants that the relevant date for the application of the proviso to sub-section (2) of Section 3 of the Law Reforms Ordinance would be the date on which the Constitutional Petition was filed in the High Court and construing the provisions of the proviso accordingly, the Letters Patent Appeal was competent in law inasmuch as, on that date no appeal lay from the original order passed in the proceedings. It was further argued that the word “proceedings” occurring in the proviso is used in the restricted sense and would connote, in the present case, the proceedings commenced by the Additional Settlement Commissioner by issuing notice of the suo motu revision to the parties and as there was no appeal provided against the order passed in suo motu revision, in terms of the proviso the Letters Patent Appeal was competent. Learned counsel for the appellants also advanced an alternative argument that the proceedings in the case had arisen out of the order of the Additional Settlement Commissioner passed on 24.11.1973, at which time the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was amended taking away the right of appeal.

1. After giving our anxious consideration to the arguments urged in support of this appeal we are, however, not impressed by any of the contentions raised. The test laid down by the Legislature in the proviso is that if the law applicable to the proceedings from which the Constitutional Petition arises provides for at least one appeal against the original order, then no appeal would be competent from the order of a Single Judge in the constitutional jurisdiction to a Bench of two or more Judges of the High Court. The crucial words are the “original order”. It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the Constitutional Petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, provided in the relevant statue. Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed of or not. Apparently the meaning of the expression “original order” is the order with which the proceedings under the relevant statue commenced. The word “proceedings” has been used in different enactments and has been subject to judicial interpretation in a number of cases wherein it has received either restricted or wide meaning according to the text and subject-matter of the particular statue. I do not consider it necessary to notice the various judgments in which this word was so construed. Suffice it to refer to the case of Nawab Din v. Member Board of Revenue (1) in which this Court had occasion to examine the scope and meaning of the word as it occurs in Section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. A useful discussion will be found in this case with reference to precedents as the meaning of the term “proceedings”. An earlier case of Jan Muhammad and another v. Home Secretary, West Pakistan and others (2) was referred to in this connection and the view taken therein was declared by this Court as the correct enunciation of the law on the subject. In the latter case reference was made to the definition of the term “proceedings” in the book “Words and phrases” which may usefully be reproduced as under:

“The term ‘proceedings’ is a very comprehensive term, and, generally speaking, means a prescribed course of action for enforcing a legal right, and hence it necessarily embraces the requisite steps by which judicial action is invoked. A ‘proceedings’ would include every step taken towards the further progress of a cause in Court or before a Tribunal, where it may be pending. It is the step towards the objective to be achieved, say for instance the judgment in a pending suit. The proceeding commences with the first step by which the machinery of the law is put into motion in order to take cognizance of the case. It is indeed a comprehensive expression and includes all possible steps in the action under the law, from its commencement to the execution of the judgment.”

Reference in this respect can also be made to “Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore” (PLD 1985 Supreme Court 107) wherein the Hon’ble Supreme Court of Pakistan reiterated the principles laid down in “Mst. Karim Bibi and others supra.

1. Attending the contention of learned counsel for the appellants that in the light of principles laid down in the case of “Secretary to the Government of Punjab, Revenue Department and others v. Sajjad Ahmad and another” (2012 SCMR 114) Intra Court Appeal is maintainable, it is observed with all reverence that facts of the said case rest on entirely different footings. The proceedings arising out in the said case are from the Punjab Land Acquisition Rules, 1983 wherein no remedy of appeal was provided. Above all, the judgment in the said case was rendered with consent of both the sides. Even otherwise, the judgment in the case of “Secretary to the Government of Punjab, Revenue Department and others v. Sajjad Ahmad and another” (2012 SCMR 114) cited by the learned counsel for the appellants was delivered by the Hon’ble Bench comprising of three members whereas the judgment in the case of “Mst. Karim Bibi and others v. Hussain Bakhsh and another” (PLD 1984 Supreme Court 344) was rendered by four Hon’ble Judges of the Hon’ble Supreme Court of Pakistan.

2. Coming to the binding effect of the judgments, it is observed that in case of conflict between the judgments of Hon’ble

Supreme Court of Pakistan on a point of law, the judgment of larger Bench shall prevail. The above principle is annunciated in “Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others” (PLD 2009 Supreme Court 284), which was later on followed in “National Bank of Pakistan through Chairman v. Nasim Arif Abbasi and others” (2011 SCMR 446) and “Messrs Wak Limited Multan Road, Lahore v. Collector Central Excise and Sales Tax. Lahore (Now Commissioner Inland Revenue. LTU. Lahore) and others” (2018 SCMR 1474). Reference in this respect can also be made to “Messrs Al-Mahmudia (Pvt.) Ltd. v. Pakistan through Secretary, Ministry of Housing and Works, Islamabad and others” (PLD 2007 Supreme Court 79).

14. There is yet another important aspect that matter in issue arises out of rent agreement executed interse parties, which contains an arbitration clause, and provides a mechanism for resolution of disputes interse parties. Though the appellants have not invoked the arbitration clause and instead filed constitutional petition but had they opted to invoke the same that should be proceeded as per mandate of The Arbitration Act, 1940, which provides remedy of appeal in terms of Section 39 of The Act ibid. Even on said premises, appellants were precluded to invoke Section 3 of “The Ordinance, 1972”.

15. After having a threadbare discussion, we are of the considered view that the instant Intra Court Appeal as well as Intra Court Appeals No. 61, 65 and 66 of 2019 are not maintainable in view of proviso to sub-section (2) of Section 3 of “The Ordinance, 1972”and as such the same are dismissed in limine.

(Y.A.) Appeals dismissed

PLJ 2020 Lahore 386

Present: Muhammad Ameer Bhatti, J.

MUHAMMAD TUFAIL etc.--Appellants

versus

MUHAMMAD ASHIQ--Respondent

R.S.A. No. 163 of 2011, heard on 20.11.2019.

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

----S. 100 & O.XLI R. 27(1)(b)--Specific Relief Act, (I of 1877), S. 12--Suit for specific performance--Dismissed--Appeal--Dismissed--Agreement to sell--Non-production of second marginal witness--Legal obligation--Deficiency in evidence--Challenge to--Production of less number of marginal witnesses of oral/written agreement is fatal--To produce required number of witnesses in evidence to prove verbal/written agreement for financial liability or further obligation is legal obligation and mandate of law whereas non-fulfilment thereof has obvious result of claim submitted by party because deficiency in this regard on part of one party creates a reasonable right in favour of other side, which cannot be taken away by providing opportunity to indolent at subsequent stage of suit proceedings i.e. appellate stage to fill-up lacuna in their evidence as it is not meant for removing deficiency in evidence of any party--It is not case of appellants that their second marginal witness was not available at time of trial of suit but it was alleged in their application filed first time before first appellate Court that at trial stage witness on account of threat extended by other side refused to appear/give evidence but this stance carries no weight being not plausible as required by law--Record of trial Court is also silent qua efforts made by appellants for production of that witness during trial--Obviously, it was a sheer negligence, inadvertence and mistaken legal advice or act and omission on part of appellants, thus, said lacuna could not be allowed to be filled in by invoking provisions of Order XLI Rule 27(1)(b), C.P.C.--I do not find any reason to permit appellants to produce second marginal witness at this stage, therefore, considering this deficiency sufficiently fatal to their case, this second appeal is dismissed being devoid of merit considering judgments impugned passed by Courts below inconsonance with law and facts--No order as to costs--Appeal was dismissed. [Pp. 391 & 392] B, C, D & E

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

----Arts. 17 & 79--Financial liability--Missing of any condition mentioned in Article 17 of Order, 1984, excludes instrument from purview of “within meaning of law” and likewise production of less number of marginal witness eliminates document from sanction of proved document as envisaged by Article 79 of Order, 1984, which forces production of at least two witnesses to prove existence and contents of verbal/written agreement in wake of fact that matter creating financial liability or future obligation requires to be attested by at least two witnesses and producing of them to record their testimony is mandatory otherwise exclusion from consideration is obvious. [P. 391] A

Mian Shahid Mahmood, Advocate for Appellants.

Ms. Kishwar Naheed and Malik Saqib Sarfraz, Advocates for Respondent.

Date of hearing: 20.11.2019.

Judgment

Suit for specific performance regarding agreement to sell on account of its non-fulfilment in terms mentioned therein, instituted by the appellants, was dismissed by the learned trial Courtvide judgment and decree dated 25.09.2010 and appeal whereof along with application under Order XLI rule 27, C.P.C. for production of additional evidence was dismissed by the learned first appellate Court vide impugned judgment & decree dated 19.07.2011; hence, this second appeal.

1. Suffice to mention that the suit for specific performance of agreement to sell purportedly executed between the parties regarding the land measuring 04-kanals 09-marlas on account of its non-performance constrained the present appellants to bring a suit for its enforcement, which was contested by the respondent and considering the divergent pleadings necessary issues were condensed enabling the parties to lead their evidence to substantiate their contents of pleadings.

2. The learned trial Court concluded the proceedings into dismissal of suit holding that non-production of second marginal witness mandatory to prove the factum of agreement to sell was incurable defect in evidence of the plaintiffs necessitating to dismiss the suit. Appeal was preferred, however, during pendency thereof, an application for production of second marginal witness was also filed, which was discouraged by the learned first appellate Court in its impugned judgment declaring the same result as concluded by the learned trial Court.

3. It is admitted by the learned counsel for the appellants that there is no cavil to the settled principle of law that production of two marginal witnesses to prove the factum of agreement to sell was mandatory and deficiency in this regard left no room for the plaintiffs-appellants to think about any success. Therefore, they at the appellate stage filed the application for production of the said second marginal witness of the purported agreement to sell but same was rejected despite the fact that clause (b) of sub-rule (1) of Rule 27 of Order XLI, C.P.C. does permit the learned first appellate Court to grant this permission in order to reach on just conclusion. Non-exercise of that provided power is a material illegality and irregularity permitting this Court to interfere while exercising the power provided under Section 100, C.P.C. He also contended that if his application is allowed, in that eventuality his case could have been considered on merits because the Courts below have dismissed appellants’ suit and appeal on account of deficiency of evidence/non-production of second marginal witness. To substantiate his contention that the permission for production of evidence at appellate stage was within the domain of the appellate Court, the learned counsel has placed reliance on law laid down by Hon’ble Supreme Court in the cases reported as Ghulam Ahmad Chaudhry v. Akbar Hussain through Legal Heirs and another (PLD 2002 Supreme Court 615), GhulamZohra and 8 others v. Nazar Hussain through Legal Heirs (2007 SCMR 1117), Syed Muhammad Hassan Shah and others v. Mst. Binat-e-Fatima and another (PLD 2008 Supreme Court 564), Muhammad Azam v. Muhammad Abdullah through L.Rs. (2009 SCMR 326), SyedSharif ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others (2012 SCMR 1258) and Commissioner Multan Division, Multan and others v. Muhammad Hussain and others (2015 SCMR 58).

4. On the other hand the learned counsels for the respondent contend that the additional evidence cannot be allowed to be produced in routine to remove the lacunas and deficiency in evidence. Aforesaid provision of law also imposes a condition of recording of reasons for grant of permission for production of additional evidence and there is no plausible, substantial cause explained by the appellants for non-production of the second marginal witness at the time of recording of evidence before the learned trial Court. It is further contended that list of witnesses presented by the appellants-plaintiffs after framing the issues does not contain the name of second marginal witness and missing of name of second marginal witness from list of witnesses submitted, by the plaintiffs during trial proceedings makes it clear that till completion of trial plaintiffs did not have any intention to produce him and reason created for non-production of second witness during trial alleged in application for additional evidence has no value and substance because they never claimed intervention/help of the Court during trial proceedings for production of the second marginal witness to prove contents of agreement to sell as required by law. While relying on the judgments reported in Rana Abdul Aleem Khan v. Idara national Industrial Cooperative Finance Corporation Defunct through Chairman Punjab Cooperative Board for Liquidation, Lahore and another (2016 SCMR 2067), Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044), Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 Supreme Court 241), Faiz Bukhsh v. Rabnawaz and others (2017 YLR Note 352), Government of Khyber, Pakhtunkhwa through Secretary, Forest Department v. Devli Kund Forest and others (2011 MLD 1511) and Abdul Aziz v. Meehan Khan (PLD 1979 Baghdad-ul-Jadid 38) it is contended that it is not a fit case for allowing the appellants to fill-up the lacuna in their evidence, therefore, there is no infirmity in the judgment of the learned first appellate Court for its rectification; hence, second appeal is liable to be dismissed.

5. I have heard the learned counsels for the parties and gone through record of the case.

6. In order to appreciate the contentions raised by learned counsels for the parties, reproduction of rule 27 Order XLI, CP.C. is essential as the case revolves around this provision, which is as under:

“27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if--

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to . enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”

First part of this rule (a) relates to grant of permission to those documents or evidence, which were not permitted by learned trial Court despite availing opportunity before it and this clause does not attract here as appellants did not apply/approach the learned trial Court for production of second marginal witness during trial proceedings and missing of name of the second witness from list of witnesses submitted by the plaintiffs/appellants also had significant bearing upon merits of the case which the plaintiffs/appellants faced dismissal of their suit on account of this deficiency in evidence.

The second part of rule 27(b) enables the appellate Court to entertain the application for production of additional evidence directly/ first time applied for its production provided some substantial cause for its earlier non-production is explained/alleged, meaning thereby that there must be reasonable excuse for non-production of that evidence at the trial stage, additionally that evidence must have been necessary to do the complete justice but it does not mean to permit any party to remove any deficiency in his evidence. This provision does not command to exercise this power for the benefit of a party which has not vigilantly produced the evidence to prove the case inasmuch as it cannot be exercised to remove the weaknesses in evidence of any party.

1. Undeniably the power provided under Order XLI Rule 27, C.P.C. is not unfettered power. The appellate Court should have exercised this discretionary power within the parameters of law enunciated in the said provision of law. Accordingly there is no bar for exercising this power provided circumstances of case do not permit the Court to decide the matter justly and fairly without receiving that evidence which is not the position here in this case.

9. Mandate of law regarding instrument of future obligation is to be attested in terms of Article 17 of the Qanum-e-Shahadat Order, 1984 and for its proof Article 79 ibid mandates the production of two attesting witnesses, therefore, it is held that attestation by two witnesses of instrument regarding future obligation was absolute and imperative and to prove production of at least two attesting witnesses to testify its contents was also mandatory/compulsory as per requirement of Article 79 of the “Order, 1984. Therefore, it is held that missing of any condition mentioned in Article 17 of the Order, 1984, excludes the instrument from the purview of “within the meaning of law” and likewise production of less number of marginal witness eliminates the document from sanction of proved document as envisaged by Article 79 of the Order, 1984, which forces production of at least two witnesses to prove the existence and contents of the verbal/written agreement in the wake of the fact that the matter creating financial liability or future obligation requires to be attested by at least two witnesses and producing of them to record their testimony is mandatory otherwise exclusion from consideration is obvious.

10. Production of the less number of marginal witnesses of the oral/written agreement is fatal. To produce required number of witnesses in evidence to prove the verbal/written agreement for financial liability or further obligation is legal obligation and mandate of law whereas non-fulfilment thereof has obvious result , of the claim submitted by the party because deficiency in this regard on the part of one party creates a reasonable right in favour of other side, which cannot be taken away by providing the opportunity to the indolent at subsequent stage of suit proceedings i.e. appellate stage to fill-up the lacuna in their evidence as it is not meant for removing the deficiency in the evidence of any party.

Since trial of case moves forward and reaches its conclusion following the procedure provided in Civil Procedure Code deviation whereof stipulates obvious results, hence, parties have to move/ perform their duty/obligation accordingly and any of the parties if performs its duty/obligation negligently, it would obviously face the consequences and in such eventuality he cannot be allowed to take advantage of any beneficial provision introduced by law at subsequent stage, which has to be exercised reasonably. Inclusion of this provision extending power to appellate Court under sub-rule (l)(b) of rule 27 of Order XLI, C.P.C. significantly enables the appellate Court to grant permission to produce that piece of evidence which is discovered subsequently or created after completion of trial or was not in possession/reach or available or in [ knowledge despite best effort.

11. It is not the case of appellants that their second marginal witness was not available at the time of trial of suit but it was alleged in their application filed first time before first appellate Court that at trial stage the witness on account of threat extended by the other side refused to appear/give evidence but this stance carries no weight being not plausible as required by law. Significance of non-inclusion of name of the said witness in the list of witnesses cannot be ignored while considering the prayer of production of second marginal witness at appellate stage. Record of the learned trial Court is also silent qua efforts made by appellants for production of that witness during the trial. Obviously, it was a sheer negligence, inadvertence and mistaken legal advice or act and omission on the part of the appellants, thus, the said lacuna could not be allowed to be filled-in by invoking the provisions of Order XLI Rule 27(1)(b), C.P.C.

1. Omission to cite second marginal witness to prove the contents of purported agreement to sell and missing of explanation, on behalf of the plaintiffs/appellants at trial level for non- production of that witness is enough to draw the inference against the appellants that if said second marginal witness was produced at the relevant time in the witness box, he would have deposed against appellants’ version as envisaged under Article 129(g) of Qanun-e-Shahadat Order, 1984.

13. In view of the above, I do not find any reason to permit the appellants to produce the second marginal witness at this stage, therefore, considering this deficiency sufficiently fatal to their case, this second appeal is dismissed being devoid of merit considering the judgments impugned passed by learned Courts below inconsonance with the law and facts. No order as to costs.

(Y.A.) Appeal dismissed

PLJ 2020 Lahore 393 [Rawalpindi Bench, Rawalpindi]

Present: Mirza Viqas Rauf, J.

GULZADA KHAN and others--Petitioners

versus

TEHSIL MUNICIPAL ADMINISTRATION JHELUM through Administrator and others--Respondents

W.P. No. 244 of 2012, decided on 2.5.2017.

Displaced Persons Compensation and Rehabilitation Act, 1958--

----S. 4--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Evacuee property--Issuance of transfer deeds--Cancellation of deeds--Issuance of notices for vocation of property--Challenge to--Instant constitutional petition is nothing but an effort for revival of cause which has already been buried by way of judgment passed in Writ Petition No--1872 of 1999 and even same has attained finality on account of withdrawal of Civil Petition No. 407 of 2004vide order dated 26.01.2006--This petition is thus, not only misconceived but fallacious on all counts--It becomes crystal clear that petitioners have sought a declaration of their title while questioning validity of compromise dated 2.2.1983 recorded before Civil Court in first round of litigation between parties.

[P. 398] A & C

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

----O.VII R. 11 & S. 12(2)--Rejection of plaint--Compromise between parties--Principle of constructive res-judicata--Validity of judgment--Jurisdiction--Challenge to--Suit which is subject matter of revision petition was surely instituted after withdrawal of Civil Petition No. 407 of 2004 on basis of observation recorded therein--Law is well settled that mere recording of some observation while deciding a lis with regard to resort of some alternate remedy is not sufficient enough to equip any party with a right to institute any proceedings, which are otherwise not warranted by law--Even otherwise, order dated 26.01.2006 is very clear in its terms and it was clearly observed by Hon’ble Supreme Court of Pakistan that petitioners may seek alternate remedy, if available to them under law--I am of considered view that suit instituted by petitioners challenging compromise was not maintainable on principle of constructive res-judicata as embodied in Explanation IV of section 11 of C.P.C--Looking from another angle, petitioners have questioned validity of compromise recorded before Court on basis of undue influence and coercion--Needless to observe that on effecting of compromise, Court, seized with matter, after recording statement to this effect disposed of suiton basis thereof--Suit in hand was thus, not proceedable in view of bar contained in section 12(2) of Code of Civil Procedure, 1908 because after insertion of sub-section (2) in section 12 of Code ibid by way of Ordinance X of 1980, a person challenging validity of judgment, decree or order on plea of fraud, mis-representation or want of jurisdiction can only seek his remedy by making an application to Court which passed final judgment, decree or order and not by a separate suit--Jurisdiction exercised by Courts below resulting into rejection of plaint is completely in accordance with law and there is neither any illegality nor material irregularity in judgments under assistance--Petitioners are occupying property in question since long and despite admitting ownership of respondent department in view of compromise Ex.P.1 on basis of which order was passed, they have resorted all possible means to prolong their illegal occupation on property in question--Petitioners have undoubtedly not only thwart process of law but played a hoodwink with process of Court as well--Petitions in hand are fallacious by virtue of which petitioners have been able to prolong their illegal possession upon property in question without any legal justification--Petitions were dismissed.

[Pp. 398, 400 & 401] B, D & E

Mr. Samad Mahmood, Advocate for Petitioners.

Raja Muhammad Farooq Raza, Advocate for Respondents No. 1 & 2.

Mr. Nadeem Akhtar Bhatti, Assistant Advocate General Punjab for Respondents.

Date of hearing: 2.5.2017.

Judgment

This single judgment shall decide the instant petition as well as Civil Revision No. 371-D of 2016 as there is Complete commonality and similarity in questions of fact and law involved in both these petitions. The subject matter in both these petitions is the property No. B-VII-2-S/8 Bearing Khasra No. 191 situated in Bano Bazar Jhelum which is under the occupancy of the petitioners as well as Respondents No. 3 to 15 in the shape of various shops.

1. It is the claim of the petitioners that the property in question was an evacuee property which was initially owned by Rajindar Singh. Initially while treating the property in question as an evacuee property forming part of the compensation pool under section 4 of the Displaced Persons Compensation and Rehabilitation Act, 1958, it was included in the auction list the year, 1972. The respondent Department which was initially a Municipal Committee though applied for the transfer of ownership of this property but failed. Consequently, the petitioners were found entitled for the transfer of the property in question by the Deputy Rehabilitation Commissioner vide order dated 17.06.1974 which followed the issuance of permanent transfer deeds of respective shops in favour of the petitioners and Respondents No. 3 to 15. Though an appeal was filed by the Department but the same was dismissed videorder dated 04.12.1975. In the meanwhile, evacuee laws were repealed by virtue of The Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (Act. XIV of 1975) w.e.f. 01.07.1974 and the matter became past and closed transaction. The Board of Revenue Punjab on the representation of the then Municipal Committee remanded the matter to the concerned authority for its fresh determination and resultantly, vide order dated 01.01.1986, permanent transfer deeds were declared void and the property in question as well as other properties were declared as evacuee. In the meanwhile Municipal Committee Jhelum issued notices to the occupants for vacation of property in question. The petitioners feeling aggrieved of the notices issued by the respondent department instituted a suit before the Civil Court which was ended in a compromise vide order dated 02.02.1983. In the year 1994, the respondent department issued notice to the petitioners for the payment of rent, which were assailed by the petitioners by way of various writ petitions, however, same were dismissed vide order dated 22.10.1998. The petitioners assailed the said order by way of Civil Petitions No. 77 to 106 of 1999 before the Hon’ble Apex Court, however, same were withdrawn to approach any other forum if available under the law for redressal of their grievance. The petitioners as well as other occupants of the respective properties again approached this Court by filing number of constitutional petitions including W.P.No. 1872/1999, however, all these petitions were dismissed vide judgment dated 12.03.2002. The petitioners though filed Civil Petition No. 407 of 2004 before the Hon’ble Supreme Court of Pakistan against the said order but the same was dismissed as withdrawn with the observations that the petitioners may avail alternate remedy, if available to them.

2. With this background, the petitioners and Respondents No. 3 to 15 instituted a suit for declaration, permanent and mandatory injunction with the prayer that they are lawful owner in possession of the respective units of building site Bearing No. B.VII-2-S/8 and the purported compromise dated 02.02.1983 is of no legal consequence, ineffective and is nullity in the eyes of law. It is note worthy that connected Civil Revision No. 371-D/2016 arises out of the said suit. The petitioners simultaneously, filed the instant constitutional petition with almost same prayer and on the basis of same facts.

3. Learned counsel for the petitioners submitted that the property in question was an evacuee property owned by Rajinder Singh and while treating the same as such it was transferred to the petitioners under the provision of the Displaced Persons Compensation and Rehabilitation Act, 1958 by way of order dated 17.06.1974. It is added that the respondent department has no right to claim the ownership and the property in question was wrongly treated as part of the properties, which were declared as non-evacuee by way of the order dated 01.01.1986. Learned counsel for the petitioners contended that the respondents are adamant to deprive the petitioners from their lawful property under the garb of purported compromise which was outcome of coercion and undue influence.

4. Conversely, learned Legal Advisor for the respondent Department, while refuting the contentions raised by his adversary submitted that this petition is not maintainable and it is clearly hit by the principle of res-judicata. Learned Legal Advisor maintained that the matter in issue has already been dealt with and decided by this Court in the previous round which cannot be reopened. It is emphatically argued that the petitioners are lingering on their possession, which is illegal and unlawful. Learned Assistant Advocate General Punjab while adding to the submissions of learned Legal Advisor submitted that the petitioners are playing hoodwink with the process of the Court and the instant petition is frivolous one and not maintainable at all.

5. After having heard the respective contentions of both sides at considerable length, I have also perused the record.

6. As already observed that the matter in issue pertains to the Property No. B-VII-2-S/8 situated in Khasra No. 191 Bano Bazar, Jhelum. It is the claim of the petitioners that being an evacuee property, it was transferred in their names vide order dated 17.06.1974 passed by the Deputy Rehabilitation Commissioner which followed the issuance of permanent transfer deeds in their favour. The main thrust of the argument raised by the learned counsel for the petitioners is that the order dated 01.01.1986 whereby certain other properties were declared as non evacuee does not correspond to the property in question. While pondering upon this aspect, it is observed that in the previous round the petitioners filed Writ Petition No. 1872 of 1999 questioning the vires of order dated 01.01.1986 passed by the Additional Deputy Commissioner/Deputy Administrator(Residual Property), Jhelum which came up for hearing before this Court alongwith connected petitions. All these petitions were dismissed vide judgment dated 12.03.2002. Record is indicative of the fact that the petitioners assailed the said judgment before the Hon’ble Apex Court through Civil Petition No. 407 of 2004 which was dismissed as withdrawn vide order dated 26.01.2006. The same is reproduced below:-

“Learned counsel for the petitioners wants to withdraw this petition which is allowed. The petition is dismissed as withdrawn. However, the petitioners may seek alternate remedy if available to them under the law.”

The petitioners alongwith Respondents No. 3 to 15 then instituted a suit for declaration, permanent and mandatory injunction which is now subject matter of Civil Revision No. 371-D of 2016. Before adverting to the competency of the said Civil Revision, it would be apposite to first lay at rest the controversy involved in the constitutional petition.

1. Perusal of record leaves no second thought that the matter in issue agitated in the instant constitutional petition has already been canvassed with all vehemence through Writ Petition No. 1872 of 1999 which was dismissed by way of judgment dated 12.03.2002 after considering all these aspects. For sake of convenience, relevant portion of the judgment is reproduced below:

“I have gone through the impugned order and documents attached with these petitions. Admittedly, the petitions have been filed after more than 8 years and badly suffer from laches. It is inconceivable that the order dated 1.1.1986 passed by the Deputy Administrator (Residual Property) was kept hidden for more than eight years. There is nothing on record to show that the property in question was treated as evacuee property by the competent authority before 1.1.1997 i.e. the target date under the Pakistan Administration of Evacuee Property Act, 1997. The remand order dated 30.1.1984 by which the case was remanded for demarcation to see whether the property was owned by the Municipal Committee was evacuee property was not challenged and attained finality. The demarcation report clearly shows that the property falls in Khasra Number owned by the Municipal Committee. Even otherwise the demarcation being a question fact cannot be challenged in the constitutional jurisdiction. The petitioners entered into an agreement with the Municipal Committee accepting the Municipal Committee as owner of property and their landlord. On the basis of the agreements reaches between the petitioners and the Municipal Committee the civil suits were disposed of. The petitioners cannot be allowed to turn around and challenge the same. The contention of the petitioners that the agreement was entered into under duress is not acceptable. There is no evidence on record to this effect. Even otherwise, it is a question of fact which cannot be gone into for the annulment of the agreement.”

An over view of above referred portion leads me to an irresistible conclusion that instant constitutional petition is nothing but an effort for revival of cause which has already been buried by way of judgment passed in Writ Petition No. 1872 of 1999 and even the same has attained finality on account of withdrawal of Civil Petition No. 407 of 2004 vide order dated 26.01.2006. This petition is thus, not only misconceived but fallacious on all counts.

9. Now adverting to Civil Revision No. 371-D of 2016, it is observed that the suit which is subject matter of the revision petition was surely instituted after withdrawal of Civil Petition No. 407 of 2004 on the basis of observation recorded therein. Law is well settled that mere recording of some observation while deciding a lis with regard to resort of some alternate remedy is not sufficient enough to equip any party with a right to institute any proceedings, which are otherwise not warranted by law. Even otherwise, order dated 26.01.2006 is very clear in its terms and it was clearly observed by the Hon’ble Supreme Court of Pakistan that the petitioners may seek alternate remedy, if available to them under the law. Guidance in this respect, if needed, can be sought from the case of Evacuee Trust Property Board and others vs. Mst Sakina Bibi and others (2007 SCMR 262). The relevant portion is reproduced below:

“As the Courts below had wrongly assumed the jurisdiction in spite of the exclusive bar contained under the provisions of the special laws, therefore, orders and judgments of the Courts below are without lawful authority or void. It is a settled law that no limitation runs against the void orders. In this view of the matter we condone the delay of one day. It is also a settled maxim that pure question of law can be raised at any stage of the proceedings as the law laid down by this Court in Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690, Almas Ahmad Faiz’s case 2006 SCMR 783. It is also a settled law that pleadings of the parties do not control or govern application of proper law to establish or prove against as law laid down by this Court in Abdul Sattar’s case NLR 1992 SC Judgment 279. The learned counsel by the respondents in the first two appeals have given lot of emphasis that civil suit was competent in view of observation of this Court. Mere reading the observation of this Court in order dated 1.5.1964 reproduced in para. 2 hereinabove clearly shows that this Court did not debar the appellants from recourse to the civil Court. This does not mean that permission was granted by this Court in violation of exclusive bar contained under a special law. It is the duty of the civil Court to decide the matter in accordance with the law in view of Article 4 of the Constitution as law laid down by this Court in Utility Stores Corporation’s case PLD 1987 SC 447. The other submission of learned counsel for the respondents in the first two appeals that question of jurisdiction was finally decided by the trial Court vide order, dated 8-5-1979 and the appellants had not challenged the same before any higher forum, therefore, order, dated 8.5.1979 had attained finality. It is pertinent, to mention here that respondents had not attacked order of rejection of objection raised by the appellants qua the jurisdiction of the civil Court as evident from order, dated 8.5.1979 which clearly shows that objection was repelled by a separate order. The said order was not available even in the record of the lower Court, therefore, principle of res judicata is not attracted as law laid down by this Court in Muhammad Sadiq’s case 1978 SCMR 130. Appellants filed written statement before the trial Court on 3.3.1984 raising preliminary objection that the jurisdiction of the civil Court was barred by law. Amended plaint was filed by the respondents on 9.12.2000. Written statement was also filed by the appellants by raising preliminary objections that the jurisdiction of this Honorable Court is barred by section 14 of Ordinance No. XVI of 1974 and that the plaintiff has remedy available to him under sections 16 and 17 of Ordinance by way of an appeal before the Administrator and revision before the Chairman. Appellants in Civil Appeal No. 2038 of 2001 filed application under Order VII, Rule 11 of C.P.C. that suit was liable to be dismissed on the well known principle of res judicata. The respondents had not filed any rejoinder before the trial Court that the issue of bar of jurisdiction was finally decided by the trial Court on 8.5.1979. The aforesaid facts clearly show that no final order was passed against the appellants on the question of jurisdiction in view of bar exclusively by a special law. Even otherwise in the facts and circumstances of this case we are not convinced that order dated 8-5-1979 had attained finality in any canon of justice.”

10. The above observations would make the proposition simple with regard to the competency of the suit instituted by the petitioners before the Civil Court. While examining the prayer clause (a) of the suit, it becomes crystal clear that the petitioners have sought a declaration of their title while questioning the validity of compromise dated 2.2.1983 recorded before the Civil Court in the first round of litigation between the parties. In order to properly appreciate this aspect, it is observed that on issuance of a notice by the then Municipal Committee, the suit was instituted by the tenant namely Noor Elahi predecessor-in-interest of the petitioners before the Civil Court on 21.1.1983 which was decided on the basis of compromise on 2.2.1983 with the following observations:

"بروئے بیانات فریقین و تحریری راضی نامہ Ex-P.1 دعویٰ ہذا ڈگری بصورت راضی نامہ بمطابق شرائط مندرجہ Ex-A-1کیا جاتا ہے مدعی کے حق میں جاری شدہ P.T. 6 و ڈگری ہائے عدالت دیوانی یا دیگر متلقہ جائیداد متدعویہ منسوخ ٹھہرتی ہیں اور مابین فریقین رشتہ کرایہ داری قائم ازابتدائی کرایہ داری مابین فریقین ٹھہرتا ہے مثل بعد ترتیب و تکمیل داخل دفتر ہووے۔ سنایا گیا"

1. It is an admitted fact that in the previous round the petitioners questioned the propriety of the said order in Writ Petition No. 1872/1999 which was dismissed vide judgment dated 01.03.2002. On institution of fresh suit by the petitioners, Respondents No. 1 & 2 resisted the suit before the Civil Court by filing their written statement. An application under Order VII Rule 11 of The Code of Civil Procedure, 1908 was also moved by the respondent Department seeking rejection of plaint. The petitioners though contested the application but the same was accepted vide judgment and decree dated 17.12.2012 and plaint was rejected. The petitioners then assailed the said judgment and decree by way of an appeal before the learned Additional District Judge, Jhelum but appeal was also dismissed vide impugned judgment and decree dated 17.02.2015.

12. After having critical analysis of all the above referred facts, I am of the considered view that the suit instituted by the petitioners challenging the compromise dated 02.02.1983 was not maintainable on the principle of constructive res-judicata as embodied in Explanation IV of section 11 of C.P.C. Looking from another angle, the petitioners have questioned the validity of compromise recorded before the Court on the basis of undue influence and coercion. Needless to observe that on effecting of compromise, the Court, seized with the matter, after recording the statement to this effect disposed of the suit vide order dated 02.02.1983 on the basis thereof. The suit in hand was thus, not proceedable in view of bar contained in section 12(2) of The Code of Civil Procedure, 1908 because after the insertion of sub-section (2) in section 12 of the Code ibid by way of Ordinance X of 1980, a person challenging the validity of judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction can only seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.

13. The jurisdiction exercised by the Courts below resulting into rejection of plaint is completely in accordance with law and there is neither any illegality nor material irregularity in the judgments under assailance. The petitioners are occupying the property in question since long and despite admitting the ownership of the respondent department in view of compromise Ex.P.1 on the basis of which order dated 2.2.1983 was passed, they have resorted all possible means to prolong their illegal occupation on the property in question. The petitioners have undoubtedly not only thwart the process of law but played a hoodwink with the process of Court as well. The petitions in hand are fallacious by virtue of which the petitioners have been able to prolong their illegal possession upon the property in question without any legal justification.

1. As a result thereof, both these petitions are dismissed with costs of Rs. 50,000/- each which shall be deposited by the petitioners with the Deputy Registrar (Judl.) of this Court within a fortnight and in case of failure, the same shall be recovered from them as arrears of land revenue.

(M.M.R.) Petition dismissed

PLJ 2020 Lahore 402

Present: Ch. Muhammad Iqbal, J.

MAQSOOD AHMAD etc.--Petitioners

versus

AMJAD JAVED--Respondent

CR No. 180498 of 2018, heard on 4.3.2020.

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

----Ss. 9, 12 & 54--Suit for possession through specific performance with permanent injunction--Direction to deposit remaining amount--Application for extension in date for deposit of remaining amount--Dismissed--Appeal--Accepted--Sale agreement--Earnest money was paid--Sending of notice for payment of remaining amount--Disregard of notice—Disentitlement from equitable or discretionary relief--Challenge to--When respondent/plaintiff in paragraph No. 3 of his plaint stated that:

"۔۔۔مظہر مدعی پہلے بھی اور آج بھی اقرار نامہ محررہ مورخہ 11.3.14 پر عمل در آمد کرنے کے لئے تیار ہے۔"

then it was his duty to deposit balance consideration amount before filing suit or append pay order with plaint but this exercise was not done--Even petitioners/defendants sent notice to respondent/ plaintiff to perform his part of agreement by making payment of remaining consideration but, even then he disregarded demand notice--It is settled law that readiness and willingness of a party for performance of its part of contract is sine qua non and a defaulting party is disentitled from any equitable or discretionary relief--Respondent/plaintiff was duty bound to show his bona fide to perform his part of contract by making deposit of remaining consideration on very first day of filing suit Whereas he contumaciously showed defiance to direction of “trial Court regarding deposit of remaining consideration amount, as such, he is not entitled for any discretionary or equitable relief--It is established that appellate Court, without considering proceedings of trial Court and discussing principle laid down by Hon’ble Supreme Court of Pakistan in judgments supra, accepted appeal of respondent/plaintiff which suffers from patent illegality and irregularity, as such, same is liable to be set-aside--Revision petition was allowed. [Pp. 405, 406 & 407] A, B, C & D

PLD 2003 SC 518; PLD 2014 SC 506; 2017 SCMR 2022; 2020 SCMR 171 and 2016 SCMR 24 ref.

Mr. M. Mehmood Chaudhry, Advocate for Petitioners.

Mr. Qaiser Mehmood Sipra, Advocate for Respondent.

Date of hearing: 4.3.2020.

Judgment

Through this civil revision, the petitioner has challenged the judgment & decree dated 15.1.2018, passed by the learned Additional District Judge, Pasrur who accepted the appeal of the respondent, set. aside the order & decree dated 20.01.2015, passed by the learned Civil Judge, Sialkot and decreed the suit filed by the respondent.

1. Brief facts of the case are that respondent/plaintiff filed a suit for possession through specific performance with permanent injunction against the petitioners on the basis of a written agreement to sell dated 11.03.2014 in respect of land measuring 05 Kanal 04 Marla situated in Moza Gharban Chowinda, Tehsil Pasrur District Sialkot which was purchased by him against consideration of Rs. 72,80,000/- out of which Rs. 800,000 were paid as earnest money and it was settled that remaining consideration of Rs. 64,80,000/- will be paid on 27.07.2014 at the time of registration of the sale deed. The petitioners/defendants appeared before the learned trial Court. On 18.12.2014, the learned trial Court, after recording conceding statement of the petitioners/defendants passed direction to the respondent/plaintiff to deposit the remaining consideration of Rs. 64,80,000/- on 05.01.2015. On the said ate, amount was not deposited and on the request of the respondent/plaintiff, the case was adjourned for 20.01.2015 for depositing the remaining consideration. Again on 20.01.2015, the amount was not deposited and an application was filed by the respondents/plaintiffs to extend the date for depositing the amount upon which the learned trial Court dismissed the suit filed by the respondent/plaintiff. The respondent filed an appeal which was accepted by the learned appellate Court vide judgment & decree dated- 15.01.2018 whereby the order & decree dated 20.01.2015, passed by the learned trial Court was set aside and the suit filed by the respondent/plaintiff was decreed. Hence, this civil revision.

2. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

3. Admittedly, the agreement to sell dated 11.03.2014 was executed between the parties, Rs. 800,000/- were paid as earnest money and remaining consideration of Rs. 64,80,000/- was settled to be paid on 27.07.2014 at the time of execution of the sale deed. The petitioners/defendants sent notice to the respondent/plaintiff on 09.09.2014 demanding the payment of remaining consideration and showing readiness/willingness to perform their part of the agreement. The respondent/plaintiff in response of the said notice, instead of paying the remaining consideration, filed instant suit for specific performance on 25.09.2014. Even in trial proceedings, the petitioners/defendants recorded their statement before the learned trial Court on 18.12.2014 that if the respondent/plaintiff deposited the remaining consideration, they would have no objection on decreeing the suit. The statement of the petitioners/defendants as well as order dated 18.12.2014 is reproduced as under:

“Statement of Maqsood Hussain Mustafa s/o Mian Ghulam Mustafa r/o house No. 12 Mohallah Park Lane, Temple Road, Lahore

On oath:

I am general power of attorney on behalf of Kaneez Fatima mother of the plaintiff and Fouzia Khanim sister. I concede the suit of the plaintiff the agreement was executed by all the defendants with the plaintiff. We received Rs. 800,000/- from the plaintiff. If the plaintiff deposited the remaining amount Rs. 64,80,000/- I have no objection on the decree of the suit land measuring 5 kanals 04 marlas in khewat No. 294 and khatooni No. 365. I submit general power of attorney Mark-A.

R.O&A.C: Tariq Mehmood Shad

18.12.2014 Civil Judge 1st Class, Pasrur

Statement of Ghulam Mustafa s/o Mian Ghulam Mustafa r/o house No. 12 Mohallah Park Lane, Temple Road, Lahore

On oath:

I state that I alongwith my brother, mother and sister entered into agreement with the plaintiff Amjad Javaid. My brother Maqsood Hussain Mustafa was also general power of attorney on behalf of the defendant No. 2 & 4.1 also concede the suit of the plaintiff If the plaintiff deposits remaining amount of Rs. 64,80,000/- I have no objection on the decree of the suit. We already received Rs. 8,00, 000/-.

R.O&A.C: Tariq Mehmovd Shad

18.12.2014 Civil Judge 1st Class, Pasrur

18.12.2014

Present: Ch. Basaharat Ali Sial learned counsel for the plaintiff.

Ch. Muhammad Akram learned counsel for the defendants. Defendant No. 1 & 3 Maqsood Hussain and Aamir Mustafa in person.

Maqsood Hussain general power of attorney of Defendant No. 2 and 4. Statements of both Maqsood Mustafa and Aamir Mustafa recorded separately. They have raised no objection on the decree of the suit. So plaintiff is directed to deposit the remaining consideration amount of Rs. 64,80,000/ on 05.01.2015. In case amount is not deposited further order will be made in accordance with law.

Announced: Tariq Mehmood Shad

18.12.2014 Civil Judge 1st Class, Pasrur

(emphasis supplied)

1. The relevant portion of the paragraph No. 2 is reproduced as under:

"۔۔۔مظہر مدعی پہلے بھی اور آج بھی اقرار نامہ محررہ مورخہ 11.3.14 پر عمل در آمد کرنے کے لئے تیار ہے۔"

When the respondent/plaintiff in paragraph No. 3 of his plaint stated that:

"۔۔۔مظہر مدعی پہلے بھی اور آج بھی اقرار نامہ محررہ مورخہ 11.3.14 پر عمل در آمد کرنے کے لئے تیار ہے۔"

then it was his duty to deposit the balance consideration amount before filing the suit or append the pay order with the plaint but this exercise was not done. Even the petitioners/defendants sent notice to the respondent/plaintiff to perform his part of the agreement by making payment of remaining consideration but, even then he disregarded the demand notice, whereas the readiness of the defendant is obvious that they after receiving the notice from the learned trial Court, got recorded a conceding statement on 18.12.2014 to the effect that they are ready to perform their part of agreement subject to deposit of the remaining consideration amount by the plaintiff, upon which the learned trial Court passed direction to the respondent/ plaintiff to deposit the remaining consideration till 05.01.2015 but he failed to pay the amount and on his request, the case was adjourned to 20.01.2015. But despite availing reasonable opportunity even on 20.01.2015 the respondent/plaintiff again did not deposit the said amount rather filed an application for extension of time without any convincing reason, which constitutes a deliberate default on the part of the respondent/plaintiff and non-compliance of the Court’s order which dismantle his assertion of readiness and willingness. It is settled law that the readiness and willingness of a party for the performance of its part of the contract is sine qua non and a defaulting party is disentitled ftom any equitable or discretionary relief as held by the Hon’ble ‘Supreme Court of Pakistan in a case cited as Bootay Khan vs. Muhammad Rafiq (PLD 2003 SC 518) as under:

“18. It may be so but it did not absolve the respondents-. plaintiffs from their legal obligation to prove that they were ready and willing to perform their part of the contract at relevant time. Their oral evidence was not coupled with any substantive steps to prove their intention to perform their part of the agreement coupled with the findings that they did not have sufficient money to pay the sale price. They did not lead any evidence as to why did they keep quiet for about five years for the suit was filed on 16.2.1985. The suit though was filed within period of limitation but inaction on the part of the plaintiffs for a period of about five years before filing of the suit furnishes strong evidence of their conduct that they were not ready and willing to perform their part of the agreement at the relevant time, therefore, were not entitled to any relief in exercise of discretion vested in the Court in the matter, for relief of specific performance of agreement is equitable and discretionary which had been rightly refused on the facts established on the record”.

Reliance is also placed on Liaqat Ali Khan & Others vs. Falak Sher & Others (PLD 2014 SC 506).

6. The respondent/plaintiff was duty bound to show his bona fide to perform his part of contract by making deposit of the remaining consideration on the very first day of filing the suit Whereas he contumaciously showed defiance to the direction of the learned trial Court regarding the deposit of remaining consideration amount, as such, he is not entitled for any discretionary or equitable relief as settled by the Hon’ble Supreme Court of Pakistan in a judgment titled as Hamood Mehmood vs. Mst. Shabana Ishaque & Others (2017 SCMR 2022) wherein it is made mandatory for the person who seeks enforcement of the agreement to sell through a suit for specific performance to apply to the Court for getting permission to deposit the balance consideration amount and any contumacy or omission in this regard would entail the invocation of penal consequences of dismissal of the suit. The relevant portion of the judgment (supra) is reproduced as under:

“3. It is mandatory for the person whether plaintiff or defendant who seeks enforcement of the agreement under the Specific Relief Act 1877, that on first appearance before the Court or on the date of institution of the suit, it shall apply to the Court getting permission to deposit the balance amount and any contumacious/omission in this regard would entail in dismissal of the suit or decretal of the suit, if it is filed by the other side.”

The above principle has been reiterated by the August Apex Court in its recent pronouncement cited as Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another (2020 SCMR 171) wherein it has been held as under:

“6. ... It is now well settled that a party seeking specific performance of an agreement to sell is essentially required to deposit the sale consideration amount in Court. In fact, by making such deposit the plaintiff demonstrates its capability, readiness and willingness to perform its part of the contract, which is an essential pre-requisite to seek specific performance of a contract.”

1. Even otherwise, the grant of decree for specific performance comes within the discretionary power of the Court which can refuse to grant the relief on the basis of equities even the suitor has proved the case, as settled by the Hon’ble Supreme of Pakistan in its latest judgment titled as Sheikh Akhtar v. Aziz vs. Mst. Shabnam Begum & Others (2019 SCMR 524) field as under:

“16. Finally, there is no cavil with the proposition that relief of specific performance is discretionary in nature and despite proof of an agreement to sell, exercise of discretion can be withheld if the Court considers that grant of such relief would be unfair and inequitable.”

8. From the above, it is established that the learned appellate Court, without considering the proceedings of the learned trial Court and discussing the principle laid down by the Hon’ble Supreme Court of Pakistan in judgments supra, accepted the appeal of the respondent/plaintiff which suffers from patent illegality and irregularity, as such, the same is liable to be set-aside. Reliance is placed on the case of Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others (2016 SCMR 24).

1. In view of above, this civil revision is allowed, the judgment & decree dated 15.01.2018, passed by the learned appellate Court is hereby set aside, the order & decree dated 20.01.2015, passed by the

learned trial Court is-upheld and the suit filed the respondent/plaintiff is dismissed. However, as the petitioners/defendants admitted receiving of the earnest money of Rs. 800,000/- and are using the same since 2014 and learned counsel for the petitioners submitted that the petitioners are ready to return the double amount of earnest money to respondent/plaintiff, as such, the petitioners/defendants are directed to pay an amount of Rs. 16,00,000/- (Rupees sixteen lac only) to the respondent/plaintiff. No order as to costs.

(Y.A.) Revision petition allowed

PLJ 2020 Lahore 408 [Multan Bench, Multan]

Present: Rasaal Hasan Syed, J.

MUHAMMAD ANEES--Petitioner

versus

JUDGE FAMILY COURT, MULTAN, and 2 others--Respondents

W.P. No. 8376 of 2019, decided on 28.5.2019.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Suit for recovery--Decreed--Execution proceedings--Attachment of property--Report of Court auctioneer--Filling of application for challenge Court auction proceedings--Offer to deposit decretal amount by father of petitioner--Rejected--Filling of writ petition--Disposed of with direction to deposit decretal amount in two installments--Father of petitioner was failed to deposit decretal amount--Auction proceedings were challenge by petitioner--Rejected--Father of petitioner did not honour his commitments and undertaking before this Court and failed to deposit decretal amount as committed by him in result, proceedings for auction of property were reactivated, auction was held, in result whereof highest bid was offered for Rs. 13,00,000/-which appears to have been approved by Executing Court and third-party interest was created-- Executing Court lawfully proceeded to activate execution process and thereafter rightly auctioned property for satisfaction of decree--Manner in which petitioner and his father have attempted to hinder and obstruct execution process smacks of process abuse--Initially father comes up to; give an impression of best intention to satisfy decree, seeks interim relief, fails to comply with commitment, and thereafter judgment-debtor, his son shows up and starts same process of objection de novo--Such tactics can never be countenanced nor approved--Decree having attained finality, petitioner being fully aware thereof, there was no reason for him not to satisfy terms of decree--Argument of auctioning property at a lower price, no material has been placed on record to support this version--Regarding objections to publications and notice, report of local commission clearly reveals that wide publication was made, and all possible attempts to ensure maximum participation in auction process were made, in result whereof seven bidders participated in auction proceedings, highest bidder having offered Rs. 1300000/-, hammer was dropped and his bid was recommended; which was finally approved by Court--It was also mentioned that notices were issued to judgment-debtor and all concerned for intended, auction--In this scenario, no error of law could be observed in process of auctioning property--Objection filed being misconceived were rightly rejected by Executing Court--Petition was dismissed. [Pp. 410, 411 & 412] A, B, C & D

Sheikh Tanveer Ahmad, Advocate for Petitioner.

Date of hearing: 28.5.2019.

Order

This order will dispose of the Constitutional petition which impugns order dated 27.4.2019 and 21.5.2019 of the learned Executing Court.

1. Respondent No. 2 filed a Family Suit for recovery against the petitioner before the learned Judge Family Court, Multan, which was decreed. Execution proceedings were started wherein after adopting different processes to enforce the decree, the property of the judgment-debtor was attached and order for its auction was passed. The Court auctioneer vide report dated 22.2.2019 informed that the property had been auctioned. The proceedings were at the stage of confirmation of auction when Saeed Ahmad son of Din Muhammad, who is father of the petitioner, filed an application to object to proceedings of auction on the plea that he was owner of the property which could not be auctioned. He however, made an offer to deposit the decretal amount in installments for which permission was statedly solicited. It appears that his intervention was declined on 19.4,2018. Saeed Ahmad thereafter filed W.P. No. 17245 of 2018 “Saeed Ahmad v. Judge Family Court and two others” wherein Muhammad Anees, petitioner herein, and judgment-debtor in the decree was arrayed as Respondent No. 3. In the said writ petition order dated 09.11.2018 of the Executing Court whereby the request of Saeed Ahmad for the deposit of decretal amount was not accepted, was challenged. In the course of hearing of the said writ petition, it appears from the file that Saeed Ahmad, petitioner’s father, reiterated his offer to pay of the decretal amount in installments and offered to deposit one-half of the decretal amount with the Executing Court forthwith, while 30 days’ grace period to deposit the remaining one-half of the decretal amount was sought. The writ petition was disposed of the operative part being relevant for the present case reads as follows:

“2. At the outset of hearing, learned counsel for the petitioner submits that petitioner is ready to make the payment of the decretal amount. He further submits that within 07 days from today, he will deposit ½ of the decretal amount with the learned Executing Court and the remaining ½ will be paid within 30 days from that date.

1. In view of above, let petitioner deposit ½ of the decretal amount with, the learned Executing Court within 07 days from today and the remaining ½ within the next 30 days of the said partial payment. In case ½ of the payment of the decretal amount is made within 07 days from today, the learned Executing Court shall defer the execution proceedings enabling to petitioner to satisfy the decree within next 30 days. In the case the necessary payment is not made within 07 days from today, the learned Executing Court shall ahead with the schedule of auction as contemplated in order dated 09.11.2018”.

Saeed Ahmad, father of the petitioner did not honour his commitments and undertaking before this Court and failed to deposit the decretal amount as committed by him in result, the proceedings for the auction of the property were reactivated, auction was held, in result whereof highest bid was offered for Rs. 13,00,000/-which appears to have been approved by the Executing Court and third-party interest was created.

1. At this stage, the petitioner re-appeared on the surface, filed objections which were rejected by the learned Executing Court vide impugned order.

2. In the course of hearing; learned counsel for the petitioner submitted that the property was worth Rs. 60,00,000/- which was sold for Rs. 13,00,000/- and this was not acceptable to the petitioner and that the Court auctioneer did not take adequate steps for publication to invite the highest number of bidders and that the petitioner was not issued a notice.

3. From the facts noted supra it is discernible that initially petitioner’s father Saeed Ahmad challenged the auction proceedings on the plea that the property belonged him and that the judgment-debtor had nothing to do with the same and the decree being not against Saeed Ahmad, his property could not be auctioned. Of his own, he offered to deposit the decretal amount in installments and then the offer before this Court that the decretal amount will be deposited in two parts, one half forthwith and the remaining half of decretal amount within 30 days. In this view of the undertaking he was allowed to deposit of the decretal amount within 7 days from the date of order and to deposit the balance within 30 days, with the direction, to the Executing Court that the execution proceedings shall be deferred to enable the father of the petitioner to pay off the decretal amount as committed and in case of failure it was directed that the Executing Court should go ahead with the schedule of auction as contemplated in order dated 09.11.2018. Admittedly this undertaking was never honoured, the amount was never deposited, therefore, Executing Court lawfully proceeded to activate the execution process and thereafter rightly auctioned the property for the satisfaction of decree.

6. Curiously enough the petitioner thereafter filed objections to the auction by claiming himself to be the owner of the property. In this backdrop the learned Executing Court rightly observed that initially the petitioner’s father had been following up the entire process, raising objections and now he had used the name of the petitioner. The Court even doubted that the petitioner had signed the objection petition. Without going into the question as to whether or not the objection petition was signed by the petitioner, it is otherwise manifest that the manner in which the petitioner and his father have attempted to hinder and obstruct the execution process smacks of process abuse. Initially the father comes up to give an impression of best intention to satisfy the decree, seeks interim relief, fails to comply with the. commitment, and thereafter the judgment-debtor, his son shows up and starts the same process of objection de novo. Such tactics can never be countenanced nor approved. Decree having attained finality, petitioner being fully aware thereof, there was no reason for him not to satisfy the terms of the decree.

7. As regards the argument of auctioning the property at a lower price, no material has been placed on the record to support this version. Regarding objections to the publications and notice, the report of the local commission clearly reveals that wide publication was made, and all possible attempts to ensure maximum participation in the auction process were made, in result whereof seven bidders participated in the auction proceedings, the highest bidder having offered Rs. 13,00,000/-, the hammer was dropped and his bid was recommended; which was finally approved by the Court. It was also

mentioned that notices were issued to the judgment-debtor and all concerned for the intended, auction. In this scenario, no error of law could be observed in the process of auctioning the property. The objection filed being misconceived were rightly rejected by the Executing Court.

1. For the reasons supra this petition is devoid of substance which is accordingly dismissed in limine.

(Y.A.) Petition dismissed

PLJ 2020 Lahore 412

Present: Masud Abid Naqvi, J.

ABDUL MAJEED AKHTAR--Appellant

versus

MUHAMMAD ZEESHAN SHOUKAT--Respondent

R.F.A. No. 1190 of 2016, heard on 18.3.2019.

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

----S. 96 & O.XXXVII Rr. 1 & 2--Suit for recovery--Decreed--Burden of proof--Non-presence of witness at time of signatures or payment of amount--Execution of cheque--Challenge to--Establishment of claim--No one else appeared on behalf of appellant/defendant except DW.2/Tariq Ali who was neither present at time of signatures or payment of amount--It is crystal clear that defendant/appellant has failed to substantiate his claim that cheque was issued as a guarantee and he will not be relieved from discharging above burden of proof--I feel no hesitation in holding that appellant/ defendant has miserably failed to establish/ substantiate/prove his claim(s), hence, findings of trial Court are maintained/upheld--Trial Court has rightly proceeded in matter--Impugned judgment and decree does not suffer from any infirmity, legal or factual, requiring interference--Appeal was dismissed. [Pp. 413 & 414] A, C, D & E

Negotiable Instruments Act, 1881--

----S. 118--Negotiable instrument--Negotiable instrument is made, drawn, accepted or endorsed for consideration and in a case to contrary onus is on person who is claiming to execute guarantee cheque to prove same. [P. 413] B

2007 CLD 1542 ref.

Ch. Muhammad Ashraf Jalal, Advocate for Appellant.

Mr. Shahid Mahmood Minhas, Advocate for Respondent.

Date of hearing: 18.3.2019.

Judgment

Brief facts of this appeal are that the respondent/plaintiff filed a suit for recovery of Rs. 19,00,000/- under Order XXXVII Rule 1 and 2 of C.P.C against the appellant/defendant. The appellant/ defendant appeared before the learned trial Court and filed an application for leave to appear and defend the suit which was duly contested by the respondent/plaintiff by filing written reply thereto. The learned trial Court, after hearing the parties decreed the suit vide judgment and decree dated 24.09.2016. Feeling aggrieved, the appellant/defendant has preferred instant regular first appeal and challenged the validity of the said judgment and decree.

1. I have heard the arguments of the learned counsel for the parties and have minutely gone through record as well as the impugned judgment and decree.

2. The appellant/defendant while appearing as DW.1 during cross examination conceded as under:

"یہ درست ہے کہ میں نے چیک خود سائن کر کے اور فل کر کے دیا تھا۔ از خود کہا کہ یہ چیک گارنٹی کیلئے دیا تھا۔"

No one else appeared on behalf of the appellant/defendant except DW.2/Tariq Ali who was neither present at the time of signatures or payment of amount. DW.2 deposed about the alleged “punchaiti” decision but conceded in cross examination as follows:

"دونوں فریقین میں سے کوئی بھی متنازعہ معاملہ کی بابت میرے پاس معاملہ نہ لے کر آیا تھا۔۔۔17.4.15 کے پنچائتی فیصلے کی بابت یہ درست ہے کہ ہم نے فریقین کو تحریری نوٹس جاری نہ کیے تھے۔ اور نہ ہی فریقین نے فیصلہ کے متعلق کہا تھا۔۔۔"

After the admission of the execution of cheque, onus to prove that cheque was issued as a guarantee was on the appellant/defendant but he miserably failed to prove his version through oral or documentary proof. It is well settled law that under section 118 of the Negotiable Instruments Act, 1881, there is an initial presumption that the negotiable instrument is made, drawn, accepted or endorsed for consideration and in a case to contrary the onus is on the person who is claiming to execute guarantee cheque to prove the same. The

Honorable Supreme Court in a case reported as Muhammad Aziz ur Rehman vs. Liaquat Ali (2007 CLD 1542) had held as under:

“…….. According to Section 118 of the Act, until the contrary is proved, the presumption shall be made that every negotiable instrument was made or drawn for consideration …..”

Reference is also made to cases reported as Muhammad Aziz ur Rehman vs. Liaqat Ali (2007 SCMR 1820), Muhammad Ali vs. Wali Muhammad (2015 CLD 1820 (Lahore), Abdul Karim vs. Muhammad Idrees(2014 CLC 1001) and Syed Zawar Hussain vs. Syed Riazul Abbas Sherazi (2015 MLD 890 (Lahore).

4. By scanning the contents of the pleadings, it is crystal clear that the defendant/appellant has failed to substantiate his claim that cheque was issued as a guarantee and he will not be relieved from discharing the above burden of proof. Testing the case in hand, at the touchstone of the abovementioned settled law, I feel no hesitation in holding that the appellant/defendant has miserably failed to establish/ substantiate/prove his claim(s), hence, the findings of learned trial Court are maintained/upheld.

5. In view of the foregoing discussion, this Court is of the affirmed view that learned trial Court has rightly proceeded in the matter. The impugned judgment and decree does not suffer from any infirmity, legal or factual, requiring interference, therefore, this appeal is dismissed.

(Y.A.) Appeal dismissed

PLJ 2020 Lahore 414

Present: Shams Mehmood Mirza, J.

JUNAID HAYEE--Petitioner

versus

CHIEF SECRETARY PUNJAB and 3 others--Respondents

W.P. No. 40172 of 2015, decided on 19.4.2016.

Constitution of Pakistan, 1973--

----Art. 199--Owner of land--Cancellation of approved site-plan--Jurisdiction--Challenge to--There appears to be no lawful justification whatsoever for passing of impugned order whereby petitioner’s approved site-plan was cancelled more so when Irrigation Department made a categorical statement in petitioner’s suit that it had no connection with petitioner’s plot and accordingly that suit was decreed in favour of petitioner--In garb of an administrative order, official of Tehsil Municipal Administration, Jehlum, Respondent No. 1 is trying to nullify effect of decree passed in petitioner’s suit against Irrigation Department, which is permissible-- In circumstances, this petition is allowed and order dated 01.12.2015 passed by Respondent No. 4 is set aside being without lawful authority and of no legal effect. [P. 417] A

Miss Yasrab Gulzar, Advocate for Petitioner.

Raja Muhammad Farooq Raza, Advocate for Respondent No. 4.

Ms. Samia Khalid, Assistant Advocate General.

Abdul Hakeem SDO Irrigation, Jhelum.

Date of hearing: 19.4.2016.

Order

Through this writ petition, order dated 01.12.2015 is challenged whereby Tehsil Officer (P&C) Tehsil Municipal Administration, Respondent No. 4, cancelled the approved building plan of the petitioner.

1. Facts of the case in brief are that the petitioner is owner of land measuring 9 Marla situated in Andar Committee, Mouza Jehlum purchased by his father vide sale deed dated 02.07.1991. On interference by the Administrator, Municipal Committee, Jehlum in the possession of the petitioner’s father over the said plot, a suit was instituted which was disposed of on 16.04.2001 on the conceding statement of the learned counsel for the administrator whereby it was stated that the petitioner’s father will not raise any construction over the said plot without prior permission of the Municipal Committee, Jehlum. The building plan submitted by the petitioner was approved in the year 2001-2002. However, subsequently the Tehsil Municipal Administration, Jehlum required the petitioner to obtain NOC from the Irrigation Department as the said department had already acquired the plot. The petitioner thereafter filed a suit against the Irrigation Department in which suit the SDO, Irrigation Department recorded his statement on 09.10.2015 that the Irrigation Department had no concern with the petitioner’s plot and that the property of Irrigation Department and the petitioner’s plot were situated in different Khasra numbers. The demarcation report was also produced in the said suit as Exh.D-2 by the Irrigation Department whereafter petitioner’s suit was decreed on 30.10.2015. Notwithstanding the decision in the above mentioned suit, the Tehsil Municipal Administrationvide order dated 01.12.2015 again cancelled the approved site-plan of the petitioner, hence this petition.

2. Learned counsel for the petitioner contended that the petitioner is being intentionally targeted at the behest of an office bearer of the ruling party and that after passing of the decree in the petitioner’s suit filed by the Irrigation Department, there remain no justification for the Tehsil Municipal Administration, Jehlum to cancel the approve site-plan of the petitioner. Learned counsel for the Tehsil Municipal Administration, Jehlum/Respondent No. 4 took up the plea that the petitioner ought to have filed an appeal before Tehsil Nazim instead of filing the writ petition which, according to him, was not maintainable.

3. Arguments heard and record perused.

4. Order dated 01.12.2015 impugned herein reads as under:

"تحریر ہے کہ آپ نے ریور روڈ خسرہ نمبر 284-2 پر رہائشی نقشہ بر رقبہ 9مرلے منظور کروا دیا تھا۔ جسکے ساتھ آپ نے بیان حلفی دیا کہ جگہ کوئی dispute نہ ہے اور نہ کوئی عدالتی کیس ہے۔ لیکن اب معلوم ہوا ہے کہ جگہ کا محلہ داروں سے تنازع ہے اور موقع دیکھ کر واضح ہوتا ہے کہ جگہ گرین بلٹ کے اندر آتی ہے مزید City Protection Band اس سال کے ADP میں شامل کیا گیا ہے اور اس جگہ پر محکمہ Irrigation کےNOC کے بغیر کسی قسم کی تعمیر نہ ہو سکتی ہے۔ لہذا آپ کی جگہ متنازع ہونے اور NOC نہ ہونے کیو جہ سے آپکا نقشہ نمبر 61/2001-2002 مستردReject/کیا جاتا ہے۔"

Mere perusal of the said order shows that it was issued with mala fide just to target the petitioner. The petitioner’s is suit against Irrigation Department had already been decreed on the statement made by the SDO in which it was clearly stated that the Irrigation Department had no concern with the petitioner’s plot. In the parawise comments filed by the Tehsil Municipal Administration, Jehlum it was So stated that in the meeting held by the District Government in which the officials of the Irrigation Department also participated it was agreed that the approved site-plan is liable to be cancelled as the plot if was situated near the bank of river and the approve site-plan was obtained without NOC of Irrigation Department. The reasons given in the impugned order for cancellation of the approved site-plan and the contents of the parawise comments have no nexus with each other. Besides the necessary documents substantiating the allegations contained in the impugned order and the parawise comments have not been brought on record.

6. There appears to be no lawful justification whatsoever for passing of the impugned order whereby the petitioner’s approved site-plan was cancelled more so when the Irrigation Department made a categorical statement in the petitioner’s suit that it had no connection with the petitioner’s plot and accordingly that suit was decreed in favour of the petitioner. In the garb of an administrative order, the official of Tehsil Municipal Administration, Jehlum, Respondent No. 1 is trying to nullify the effect of decree dated 30.10.2015 passed in the petitioner’s suit against the Irrigation Department, which is not permissible.

1. In the circumstances, this petition is allowed and order dated 01.12.2015 passed by Respondent No. 4 is set aside being without lawful authority and of no legal effect.

(M.M.R.)

PLJ 2020 Lahore 417

Present: Rasaal Hasan Syed, J.

Mst. SHAHEEN BIBI--Petitioner

versus

SAEED AHMED RANA and others--Respondents

W.P. No. 16404 of 2020, decided on 17.6.2020.

Constitution of Pakistan, 1973--

----Art. 199--Suit for cancellation of sale-deed--Death of plaintiff during pendency of suit--Impleadment of legal heirs--Controversy regarding status of petitioner as legal heir--Recording of statement of council--Order for submission of amended plaint without petitioner--Civil revision--Dismissed--Divorce deed--Opportunity of evidence--Rule of natural justice--Trial Court simply relied upon objections raised and proceeded to direct filing of amended pleadings by excluding Shaheen Bibi and incorporating names of Khursheed Bibi and legal heirs of Muhammad Atif--Revisional Court also affirmed order with observation that petitioner may assail divorce deed in civil Court and adopt independent remedy for relief--Courts below proceeded on mere assumption as to genuineness of disputed divorce deed and put petitioner under an onus to seek a declaration from Court of law; little appreciating that there was a serious factual controversy--Petitioner specifically denied genuineness of document, respondents were banking upon said document and were obviously under an obligation to prove document to be genuine and it was only after proof of document that petitioner could be excluded from proceedings--Parties were seriously involved in factual controversy and therefore trial Court could not casually accept one side’s viewpoint or non-suit petitioner without any inquiry or opportunity of evidence--Impugned order on face of it was violative of rule of natural justice and due process--Courts below committed serious error of law in causally denying petitioner right to present her case and by excluding her from proceedings--Petition was accepted. [P. 419] A, B, C & D

Ms. Ammara Liaquat Bhatti and Raja Tasawer Iqbal Advocates for Petitioner.

Syed Muhammad Shah, Advocate for Respondent No. 1.

Date of hearing: 17.6.2020.

Order

This Constitutional petition calls into question 20.4.2019 and 24.1.2020 whereby the name of the petitioner was excluded from the name of the list of legal heirs and the order was affirmed in revision.

1. Late Muhammad Javed filed a suit for cancellation of sale deed dated 23.10.2000. During the pendency of the suit he died on 21.6.2018. During impleadment of his legal heirs controversy arose with regard to the status of the petitioner as his widow arose. On 14.3.2019 Syed Muhammad Shah, Advocate, recorded his statement without oath to the effect that Shaheen Bibi had been divorced allegedly by Muhammad Javed vide divorce deed dated 17.2.1999 and being so she could not fall in the list of legal heirs. On 20.4.2019 the learned civil judge passed the order to the effect that amended pleadings be filed by impleading legal heirs except Shaheen Bibi petitioner. This order was challenged in civil revision by the petitioner which was dismissed by he learned Addl. District Judge vide order dated 24.1.2020.

2. Learned counsel for the petitioner submitted that the petitioner was already a party in the proceedings and that without any investigation or inquiry her name was excluded from the list of legal heirs on the based on forged divorce deed, original documents of NADRA were excluded, and the petitioner was not allowed the right of cross-examination to the opposing counsel whose statement was considered to be sacrosanct unjustifiably. Submits that the controversy could only be resolved by framing issues and recording of evidence and that the petitioner could not be directed to file a suit for declaration. Lastly, it was argued that the learned Addl. District judge did not consider the actual requirement of law and illegally ignored that the order was against the rule of natural justice and due process. Learned counsels for the respondents in the course of arguments did not oppose the proposition that the controversy should be resolved through issues and evidence.

4. After hearing learned counsel for the parties in attendance it is observed that the learned trial Court simply relied upon the objections raised and proceeded to direct the filing of amended pleadings by excluding Shaheen Bibi and incorporating the names of the Khursheed Bibi and legal heirs of Muhammad Atif. The revisional Court also affirmed the order with the observation that the petitioner may assail the divorce deed in the Civil Court and adopt the independent remedy for relief.

5. It is manifest that the Courts below proceeded on mere assumption as to the genuineness of the disputed divorce deed and put the petitioner under an onus to seek a declaration from the Court of law; little appreciating that there was a serious factual controversy. Petitioner specifically denied the genuineness of the document, respondents were banking upon the said document and were obviously under an obligation to prove the document to be genuine and it was only after the proof of the document that the petitioner could be excluded from the proceedings. Another factor was that the petitioner was relying on the original NADRA record which in her perception contradicted the stance of the respondents. In these circumstances, it was obvious that the parties were seriously involved in factual controversy and therefore the learned trial Court could not casually accept one side’s viewpoint or non-suit the petitioner without any inquiry or opportunity of evidence. It was only due to this reason that the learned counsel for the respondents did not contest the course proposed for the disposal of the controversy, by remitting the matter to the Court below and for decision after framing of issue and opportunity of evidence to the parties.

1. Even otherwise the impugned order on the face of it was violative of the rule of natural justice and due process. The Courts below committed serious error of law in causally denying the petitioner the right to present her case and by excluding her from the proceedings. For the reasons above, this writ petition is accepted, the impugned orders are declared to be without lawful jurisdiction and accordingly annulled. In result, the case is remanded to the learned civil judge who shall frame an issue on the controversy as to the status of the petitioner as legal heir of the deceased Muhammad Javed, allow evidence to both sides and decide the matter afresh on the basis of evidence to be produced and in accordance with law.

(Y.A.) Petition accepted

PLJ 2020 Lahore 420 [Multan Bench, Multan]

Present: Jawad Hassan, J.

RELIANCE COMMODITIES (PRIVATE) LIMITED--Petitioner

versus

FEDERATION OF PAKISTAN and others --Respondents

W.P. No. 1014 of 2018, heard on 17.3.2020.

Constitution of Pakistan, 1973--

----Art. 199--Income Tax Ordinance, (XLIX of 2001), Ss. 210, 4B & 122(5A) r/w S. 122(9), 210--Fatima Group of Industry was registered tax payer--Issuance of show-cause notice--Powers to assess & determine liability of super tax--Principles of interpretation of fiscal laws--Challenge to--Constitutional petition--Maintainability--Jurisdiction--Illegal assumption of powers--Question of--Whether power to as less and determine liability for purpose of super tax under Section 4B vests exclusively with commission in land revenue or same could be delegated to additional commissioner--Determination--Legislation--Scope of-- Suffice it to observe that super tax, by its very nature, relates to an additional duty of income tax and this charge has been recognized to exist independent of income tax--Hence, in so far as charge/levy of super tax is concerned, Section 4B definitely emerges as an independent provision--This Court has held in a case titled “D.G. Khan Cement Company Limited versus Federal Board of Revenue and others” (2018 PTD 287) that “evidently if legislature has enacted a separate provision for charge of super tax, intention and mood of legislature is very clear and no further expression is required to hold that legislature intended for separate charge in nature of super tax”--This view has been ratified by Division Bench of this Court on 28.2.2020 and in a case reported as “DG Khan Cement versus Federation of Pakistan etc” (2020 LHC 1066)-- Trawling through case law and reckoning principles of interpretation of fiscal laws, I harbour no doubts in saying that Legislature has envisaged application of provisions of assessment and recovery as contained in Chapter X i.e. inter alia Sections 120 and 122 of Ordinance to Section 4B by employing term “all” in Section 4B sub-section (3). Similarly sub-section (5) of Section 4B imports provisions of Part IV, X, XI and XII of Chapter X and Part 1 of Chapter XI with regard to collection and recovery of super tax and finds mention of following words, “so far as may be, apply to collection of super tax as these apply to collection of tax under Ordinance”--To my mind, Legislature has used words consciously and asymmetrically so as to give effect to them and to make sure that no word or provisions of a statute is to be treated as surplusage and redundant when interpreted in its literal and ordinary meaning. It is trite law that provisions in a taxing statute must be harmoniously reconciled instead of picking out any inconsistency between different provisions. Thus, all provisions of a statute have to be read together and harmonious construction is to be placed on such provisions so that no provision is rendered nugatory. Hence, in so far as charge/levy of super tax is concerned, Section 4B appears to be an independent provision. However, its sub-sections (3), (4) and (5) need to be read in consonance with each other along with other provisions of Ordinance as specified in those sections-- Writ against show-cause notice is maintainable in present case because show-cause notices have been issued by incompetent authority--It is reiterated that Courts in afore referred cases have held that issuance of a show-cause notice is itself a complete act and decision which could be subject to judicial review if inter alia, show-cause notice was not lawfully issued by competent authority, if issuance of show-cause notice was ultra vires relevant law and if issuance of show-cause notice was without jurisdiction or with mala fide--Whys and wherefores lead me to a finale that whether in case in hand show-cause notice has been issued without jurisdiction and is non est in eye of law? For that purpose a glance at jurisdiction order relied upon by Respondents is quintessential in order to see scope of delegation and nomenclature of delegate--It is seen that show-cause notices were issued by Additional Commissioner, (Audit) Range-1, Zone-Corporate--At cost of repetition, it is reiterated that although under Section 210 of Ordinance Commissioner can delegate his powers and functions but Section 210 (1A) clarifies that power in terms of Section 122(5A) regarding amendment of assessment could not be delegated below rank of Additional Commissioner. In present case authority was given to Officer Inland Revenue which could not have been done as per spirit of Ordinance--Petition allowed.

[Pp. 431, 438, 456, 457 & 458] A, B, C, K, L, M & N

2018 PTD 287 and 2012 PTD 1374 ref.

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

----Ss. 122 & 413--Applicability--Purpose of--Question of--Whether Section 4B could be applied to recover amount without framing of rule by Board as envisaged by S. 4-B(6) of Ordinance? Board may make rules for carrying out purpose of Section 4B--Section 4B of Ordinance allow incursion of Section 122(5A) read with 122(9) of Ordinance? whether Section 4B exclusively clothes Commissioner with special powers for assessment and recovery of super tax and precludes machinery provisions of Ordinance i.e. Sections 122(5A) read with 122(9)?--Answer is in negative for reasons extensively dealt in earlier part of this judgment where it was said that Section 4B of Ordinance does not preclude scope of Sections 122(5A) and 122(9) of Ordinance as express reference has been made to them in Section 4B of Ordinance--It is clear that Section 210 applies to Section 4B of Ordinance as well--In other words, all those sections in Ordinance which deal with powers and responsibilities of Commissioner, powers could very well be delegated by Commissioner as per mandate of Section 210 of Ordinance. Section 4B is indeed part of Ordinance being one of sections so applicability of Section 210 cannot be excluded. [Pp. 439 & 441] D, E & G

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

----Ss. 122(5-A) & 210--Delegation of powers--Validity--Commissioner can delegate his powers and functions--Power in terms of Section 122(5A) regarding amendment of assessment could not be delegated below rank of Additional Commissioner--Section 4B does not specifically exclude applicability of Section 210 from its purview. In fact sub-section (5) of Section 4B imports provisions of Part IV, X, XI and XII of Chapter X and Part 1 of Chapter XI with regard to collection and recovery of super tax and finds mention of following words, “so far as may be, apply to collection of super tax as these apply to collection of tax under Ordinance”--Section 210 falls under Chapter XI, which finds mention in sub-section (5) of 4B of Ordinance. It is clear from language of Section 4B that not only provisions of recovery but provisions of assessment of Ordinance which collectively could be referred as machinery provisions of Ordinance have also been made applicable to it--Delegation could be validly done under Ordinance and its applicability cannot be precluded from Section 4B of Ordinance, it will be in order to mention that for constituting a valid delegation of powers under Section 210(1) of Ordinance, certain conditions must be satisfied.

[Pp. 441 & 442] F, H & I

Constitution of Pakistan, 1973--

----Art. 199--Constitutional Jurisdiction--Show maintainability against show-cause notice--It will be in fitness of things to take guidance from dictum of case precedents developed on this particular issue. It will emerge that consistent view of Courts has been that a mere show-cause notice is not an adverse order. However, Court in exercise of its Constitutional jurisdiction could take up writs to challenge show-cause notice if it is found that show-cause notice is totally non est i.e. want of jurisdiction of issuing authority or has been issued mala fidely i.e. merely to harass subject. [P. 443] J

2011 PTD 2260, 2016 PTD 1158, PLD 2019 Sindh 519 ref.

Chaudhary Muhammad Ali, Advocate for Petitioner.

Malik Zafar Ali Thaheem, Advocate FBR.

Mehar Zameer Hussain Sundhal, Deputy Attorney General for Respondents.

Dates of hearing: 4, 10 & 17.3.2020.

Judgment

In exploring the neglected art of statutory interpretation, the judges resist the temptation to use legislative intention and legislative history. Hence, it is incompatible with democratic government to allow the meaning of a statute to be determined by what the judges think the lawgivers meant rather than by what the legislature actually promulgated. Eschewing the judicial lawmaking that is the essence of common law, judges should interpret statutes and regulations by focusing on the text itself.[1]

(Justice Antonin Scalia, Judge, US Supreme Court)

The nucleus of the controversy fallen for determination is the anthropology of Section 4B of the Income Tax Ordinance, 2001 (the “Ordinance”) viz a viz its character and nature for being a complete code onto itself with the semantic underpinnings as to exclusion of the machinery provisions of the Ordinance i.e. Section 122(5A) read with Section 122(9) of the Ordinance. The findings will also discuss the principles of interpretation employed for fiscal laws as well as the maintainability of writ petition against show-cause notices on the touchstone of the ripeness doctrine. The Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) by challenging two show-cause notices dated 22.12.2017 and 03.01.2018 respectively issued by the Respondent No. 3/Additional Commissioner Inland Revenue on the ground that aforesaid-Respondent had no power to issue the same under Section 122(5A) read with 122(9) of the Ordinance as the power to issue such notices only laid with the Respondent No. 2/Commissioner Inland Revenue under Section 4B of the Ordinance.

I. BRIEF BACKGROUND OF THE CASE

1. The Petitioner is the part of the Fatima Group of Companies which has made significant investments in large-scale manufacturing plants, utilizing technology and promoting manufacturing excellence, which extends to fertilizer, sugar, textile, commodities trading, mining and energy. It is a private limited company and is also a leading commercial exporter/importer of different commodities (i.e. export of molasses and import of sugar and fertilizers). It is a registered taxpayer and has received show-cause notices dated 22.12.2017 under Section 122(5)(a) of the Ordinance and then on 03.01.2018 issued by the Respondent No. 3. Instead of filing replies to the aforesaid show-cause notices, the Petitioner filed this constitutional petition with the stance that power to assess and determine liability of super tax vests only with the Respondent No. 2. This Court issued notices to the Respondents on 22.01.2018 and also granted interim relief on the rule of consistency, as a similar relief was granted in W.P. No. 126992 of 2017 and W.P. No. 10477 of 2017. The Respondents filed report and para-wise comments on 09.04.2018 by raising preliminary objections to the maintainability of the petition.

II. PETITIONER’S ARGUMENTS

1. Advocate Chaudhary Muhammad Ali, counsel for the Petitioner inter-alia contended that impugned show-cause notices were issued under Section 122(9) read with Section 122(5A) of the Ordinance to amend the deemed assessment of income of the Petitioner; that assessing the Super Tax on income by the Respondent No. 3 is without lawful authority, without jurisdiction, mala fide and an illegal assumption of power under Section 122(5A) of the Ordinance as such the same is against the letter, intent and spirit of the Ordinance and the Constitution; that language of Section 122(9) of the Ordinance clearly demonstrate that “No assessment shall be amended, or further amended, under this section unless the taxpayer has been provided with an opportunity of being heard”; that the Respondent No. 3 has no power to issue show-cause notices because in Section 122(5A) of the Ordinance, the word used is ‘Commissioner’ only.

2. Chaudhary Muhammad Ali, Advocate further argued that Section 4B of the Ordinance is a complete section with all of its mechanism because language of sub-section of Section 4 refers to as Charging Sections, Definition Sections, Collection Sections, Recovery Sections and Legislative Sections and other miscellaneous Sections; that provision for the purposes of assessment has been specifically provided for under sub-section (4) of Section 4B and bare reading of the same reveals that legislature has provided for assessment for the purposes of Section 4B separately, for which the Respondent No. 2 has been exclusively empowered to assess and collect such levy; that powers have been given by the legislature to the Respondent No. 4 under Section 237 of the Ordinance to frame rule for the purpose of Section 4B. However, no rules have been framed so far to give effect to the provision of Section 4B of the Ordinance. The counsel for the Petitioner has argued that Section 4B’s heading is super tax and recovery because the Ordinance has Chapters, Parts wherein division is made primarily through Chapters and there are certain Sections which are Definitions, Charging Penal, Recovery, Assessment and others. Therefore, he further argued that since the law is the command of sovereign and enforces through Statutes which were without heading, chapters and parts. He mentioned that since 1547, the King of England started printing the Statutes in separate numbering and then in 1796, House of Commons appointed a committee to consider most effective means of promulgating the Statutes and the committee recommended the responsibility for the drafting of marginal notes to be shifted from King’s Printer. However, despite such recommendations, in 1831 the English theoretical jurist Professor Jeremy Bentham advocated the numbering of sections to make statutes more practical and readable. The suggestions that the sections, created by the Parliament should carry descriptive heading appeared expressly in 1838 in a letter of Arthur Symonds of the Board of Trade to CP Thomson, President of Board of Trade. Ch. Muhammad Ali, Advocate next contended that the view is now settled that the Headings or titles prefixed to sections can be referred to in construing an Act but conflicting opinions have been expressed on the questions as to what weight should be attached to the headings. However, this question was settled by the Supreme Court of India in “Raiburumatham Prabbaker v. Rawatmal” (2004) 4 SCC 766) wherein it was held that “It is not permissible to assign the heading or title of a section a limited role to play in the construction of statutes. They may be taken as very broad and general indicators of the nature of the subject matter dealt with thereunder. The heading or title may also be taken as condensed name assigned to indicate collectively the characteristics of the subject matter dealt with the enactment underneath; though the name would always be brief having its own limitations. In case of conflict between the plain language of the provision and the meaning of the heading or title, the heading or title would not control the meaning which is clearly and plainly discernible from the language of the provision thereunder.” In order to strengthen the contentions, the counsel for the Petitioner, Chaudhary Muhammad Ali has relied on “Pakistan Broadcasters Association and 10 others versus PEMRA” (PLD 2014 630), “Vagina Silk Mill Lyallpur versus Income Tax Officer etc.” (PLD 1963 SC 322), “Commissioner of Income Tax versus ELI Lilly Pakistan Limited and others” (2009 SCMR 1279), “Gatron (Industries ) Limited versus Government of Pakistan and others” (1999 SCMR 1072), “Khalid Mehmood versus Collector of Customs” (1999 SCMR 1881), “Al Ahram Builders (Private) Limited versus Income Tax Tribunal” (1993 SCMR 29), “Mari Petroleum Company Limited versus Federation of Pakistan and 3 others” (2019 PTD 1774), “Collector of Sales Tax versus Khurshid Spinning Mills Limited and another “ (2017 PTD 196), “Rafiq Ur Rehman versus Federation of Pakistan etc” (2017 PTD 1178), “Muhammad Aslam versus Federation of Pakistan and Others” (2017 PTD 803), “Zaver Petroleum Corporation versus Federal Board of Revenue and another” (2016 PTD 2332), “Chaudhary Sugar Mills Limited versus Chief Commissioner and 2 others” (2016 PTD 527), “Oil And Gas Development Company Limited versus Federal Board of Revenue and 2 others” (2016 PTD 1675), “KK Oil and Ghee Mills (Private) Limited versus Federal Board of Revenue and others” (2016 PTD 2601), “Messers J.K. Brothers Pakistan (Private) Limited versus The Additional Commissioner Inland Revenue and another” (2016 PTD 461), “Daewoo Pakistan Express Bus Service Limited versus Federation of Pakistan etc” (2016 PTD 152), “Kashmir Sugar Mills Limited versus Federation of Pakistan etc” (2016 PTD 1649), “Muslim Commercial Bank Limited versus Deputy Commissioner of Income-Tax and others “ (2004 PTD 1901), “Murree Brewery Co. Ltd versus Pakistan Through the Secretary to Government of Pakistan Works Division and 2 others” (PTD 1972 SC 279), “Messers Usmania Glass Sheet Factory Limited, Chittagong” versus Sales Tax Officer, Chittagong (1971 PTD 1), “Jamal Salam versus Deputy Collector Customs” (2012 PTD 1471), “Ocean Pakistan Limited versus Federal Board of Revenue and others” (2012 PTD 1374) and “Iram Shahdai versus Principal School of Nursing Mayo Hospital and others” (2017 PLC (C.S.) 943). He also relied on W.P. No. 10477 of 2017 titled “Maple Leaf Cement Factory Limited versus Additional Commissioner Inland Revenue etc”.

I. RESPONDENT’S ARGUMENTS

1. Learned counsel for the Respondents, FBR, Malik Zafar Ali Thaheem has controverted the arguments of learned counsel for the Petitioner and stated that the Commissioner Inland Revenue, Corporate Zone, RTO, Multan has delegated his powers and functions under Section 122(5A) vide order No. CIR (Corp.Zone)/RTO-MN/272 dated 29.07.2016 in accordance with the provision of Section 210 of the Ordinance therefore, the proceedings under Section 122(5A) have been initiated as per law. He argued that Section 4B of the Ordinance provides for determination of tax liability under said provision which essentially involves amendment of return of income and sub-section (3) of Section 4B clearly indicates that super tax payable shall be paid, collected and deposited on the date and in the manner as specified in sub-section (1) of Section 137 of the Ordinance and provisions of Chapter X of the Ordinance, which deals with returns, assessment, appeals and collection and recovery of tax, can be applied. He further argued that Section 122 of the Ordinance is applicable to super tax as the Commissioner may amend an assessment order treated as issued under Section 120 or issued under Section 121 by making such alteration or additions as the Commissioner considered necessary. He next argued that sub-section (4) of Section 4B of the Ordinance empowers the Commissioner to determine the super tax liability and to serve order to taxpayer regarding determination of liability to taxpayer. He next argued that Section 4B relates to super tax imposed for rehabilitation of temporarily displaced persons which itself is a charging section with definition of recovery procedure and assessment mechanism and the rate for calculation of tax have been specified in Division IIA of Part I of the First Schedule of the Ordinance. Lastly Malik Zafar Ali Thaheem Advocate argued that writ against show-cause notices is not maintainable and relied on “D.G. Khan Cement Company Limited versus FEDERAL BOARD OF REVENUE and others” (2018 PTD 287), “Muhammad Aslam versus Federation of Pakistan and others” (2017 PTD 803), “Messrs Ocean Pakistan Ltd versus Federal Board of Revenue, Islamabad and others” (2012 PTD 1374), and “Messrs Noble (Pvt) Ltd through Manager Finance and Administration versus Federal Board of Revenue through Chairman and 4 others” (2009 PTD 841).

IV. FISCAL ANTHROPOLOGY

1. Legal anthropology examines the relationship amongst society, culture, and law (taxes levied) in societies at various levels of political, economic, and social complexity. Legal anthropology is a sub-field of the discipline of anthropology. In the case at hand, it is the fiscal anthropology, which needs to be explored. In Murray & Carter’s Guide to Income Tax Practice at page 3, Earl Cairns of the House of Lords said: “as I understand the principle of all fiscal legislation it is this: if the person sought to be taxed comes within the letter of the law, he must be taxed, however great the hard ship may appear to the judicia lmind ….In other words, if there be admissible in any statute what is called an equitable construction, certainly such a construction is not admissible in a taxing statute, where you can simply adhere to the words of the statute.”

In 1916 the Lord Stanley Buckmaster of the House of Lords remarked, “…if the words of the statute can only reasonably bear one meaning, it is not, in my opinion, within the competence of the Courts to consider the fairness or the unfairness of the result that ensues. That is a matter for Parliament and not for H.M’s judges.” The words of Mr. Justice Rowlatt in the case of Cape Brandy Syndicate vs. Inland Revenue Commissioners, [1921] 1 KB 64 also need to be mentioned when he said, “there is no room for any intention, there is no equity about a tax, there is no presumption of parties to a tax, you read nothing in, you imply nothing, but you look fairly at what is said and at what is said clearly and that is the tax.”

1. If we were to quickly stroll through the history of taxation, it would emerge that taxation in some form was present since ancient Egypt and Greece. The Romans also introduced the concept of customs duties on imports and exports, and the Great Britain inherited its tax history from the Roman Empire. If we look at the history of the sub-continent, the Income Tax was introduced by the British Government through the Income Tax Act, 1860 (which was replica of the then respective British law) to overcome the financial difficulties after the 1857 war of independence. Subsequently, four Income Tax Acts of 1886, 1918, 1922 and 1939 were introduced in British India which were important developments to the tax system. After independence in 1947, Pakistan adopted the Income Tax Act, 1922 as its official income tax law, which was modified several times. This was replaced by the Income Tax Ordinance, 1979. Subsequently, the current Income Tax Ordinance, 2001 was introduced and FBR has also notified the Income Tax Rules, 2002.

2. The Finance Act, 2015 (the “Act”) was passed by the National Assembly of Pakistan on June 29, 2015 which, inter alia, amended the Ordinance by inserting Section 2(28A) and Section 4(B) in the Ordinance, vide Section 9(2) of the Act. Through Section 4B of the Ordinance, an additional tax in form of Super Tax has been levied in terms of which a levy has been imposed for rehabilitation of temporarily displaced persons at the rates specified in Division IIA of Part I of the First Schedule, on income of every person specified in the said Division. The present dispute in the instant proceedings relates to this legal development regarding its mode and manner of being applied.

V. CONSTITUTIONAL MOOT POINTS

1. In order to resolve the controversy in the matter, this Court deems it appropriate to frame the following constitutional moot points:

2. What is the scope of Section 4B of the Ordinance and whether it is a complete comprehensive section with its own mechanism of charging, definitions, recovery, assessment, procedure?

3. Whether Section 4B can be applied to recover any amount without framing the rules by the Board under sub-section (6) of Section 4B?

4. Whether Section 122 of the Ordinance is applicable to super tax under Section 4B of the Ordinance in absence of its notified rules?

5. Whether Additional Commissioner Inland Revenue has powers to issue show-cause notice of Section 4B(1) read with Section 122 of the Ordinance?

6. Whether writ is maintainable against show-cause notice under the Ordinance, without filing reply to show-cause notice?

VI. DETERMINATION BY THE COURT (AS PER ARTICLE 201 OF THE CONSTITUTION)

A. LEGAL ANATOMY OF SELF-CONTAINED CODE

1. As stated earlier, super tax has been imposed for the rehabilitation of temporarily displaced persons for the tax year 2015 and has been extended till 2017. Section 4B of the Ordinance reads as under:

4B. Super tax for rehabilitation of temporarily displaced persons.--(1) A super tax shall be imposed for rehabilitation of temporarily displaced persons, for tax years 2015 to 2017, at the rates specified in Division IIA of Part I of the First Schedule, on income of every person specified in the said Division.

(2) For the purposes of this section, “income” shall be the sum of the following:--

(i) profit on debt, dividend, capital gains, brokerage and commission;

(ii) taxable income 4[(other than brought forward depreciation and brought forward business losses)] under Section 9 of this Ordinance, if not included in clause (i);

(iii) imputable income as defined in clause (28A) of Section 2 excluding amounts specified in clause (i); and

(iv) income computed under Fourth, Fifth, Seventh and Eighth Schedules.

(3) The super tax payable under sub-section (1) shall be paid, collected and deposited on the date and in the manner as specified in sub-section (1) of Section 137 and all provisions of Chapter X of the Ordinance shall apply.

(4) Where the super tax is not paid by a person liable to pay it, the Commissioner shall by an order in writing, determine the super tax payable, and shall serve upon the person, a notice of demand specifying the super tax payable and within the time specified under Section 137 of the Ordinance.

(5) Where the super tax is not paid by a person liable to pay it, the Commissioner shall recover the super tax payable under sub-section (1) and the provisions of Parts IV, X, XI and XII of Chapter X and Part I of Chapter XI of the Ordinance shall, so far as may be, apply to the collection of super tax as these apply to the collection of tax under the Ordinance.

(6) The Board may, by notification in the official Gazette, make rules for carrying out the purposes of this section. (emphasis added).

1. With regard to the limb concerning the features of independence, stand alone, self-executory and self-contained nature of the provision, it is instructive to glean through the case of “Pakistan Industrial Development Corporation versus Pakistan Through The Secretary, Ministry of Finance” (1992 SCMR 891) where a challenge to super tax levied by virtue of Section 55 of the Income Tax Act, 1922 was made on the basis of double taxation. The Hon’ble Supreme Court had observed at para 15 as follows:

“Section 55 clearly provides that super-tax will be in addition to the income-tax on the total income of the previous year at the rate laid down for that year by the `Central Act'. According to Section 56 total income as assessed for the purposes of income-tax shall be the total income for purposes of super-tax. Section 58 applies the provisions of Income Tax Act relating to charge, assessment, collection and recovery of income-tax to super-tax as well. Super-tax is, therefore, independent, separate and-quite distinct from income-tax. It is a tax in addition to income-tax on the total income of the assessee. Super-tax has been levied in addition to income-tax by a clear and independent provision for whose charge, assessment and recovery procedure has been provided by Section 58. The Legislature by clear unambiguous and in definite terms levied super-tax on the total income determined for purposes of income-tax”.

12. Going by the ratio decidendi of the afore referred case, suffice it to observe that the super tax, by its very nature, relates to an additional duty of income tax and this charge has been recognized to exist independent of the income tax. Hence, in so far as the charge/levy of the super tax is concerned, Section 4B definitely emerges as an independent provision. This Court has held in a case titled “D.G. Khan Cement Company Limited versus Federal Board of Revenue and others” (2018 PTD 287) that “evidently if the legislature has enacted a separate provision for the charge of super tax, the intention and mood of the legislature is very clear and no further expression is required to hold that the legislature intended for separate charge in the nature of super tax”. This view has been ratified by the Division Bench of this Court on 28.2.2020 and in a case reported as “DG Khan Cement versus Federation of Pakistan etc” (2020 LHC 1066).

1. However, that said, the flip side is with regard to the applicability of machinery provisions of the Ordinance to this particular section. It has been argued on behalf of the Petitioner that Section 4B clasps its own machinery provisions for assessment and recovery and exclude the machinery provisions of the Ordinance i.e. Section 122(5A) read with Section 122(9) of the Ordinance.

2. It is noteworthy to mention that apparently sub-section (3) of 4B of the Ordinance envisages application of all provisions of Chapter X. This Chapter happens to contain Section 122 of the Ordinance. Further Section 4B also finds specific reference to Section 137(1) of the Ordinance with regard to payment, collection and deposit. Similarly sub-section (5) of 4B imports the provisions of Part IV, X, XI and XII of Chapter X and Part I of Chapter XI with regard to recovery of super tax and finds mention of the following words, “so far as may be, apply to the collection of super tax as these apply to the collection of tax under the Ordinance”. Thus, Section 4B encapsulates and makes direct reference to the above-referred provisions of the Ordinance suggesting their applicability while interpreting Section 4B of the Ordinance.

B. SCHEME OF INTERPRETING A TAXING STATUTE

1. Devouring Section 4B might give an enigmatic impression in terms of being a self-contained code yet encompassing within its ambit other provisions of the Ordinance with regard to assessment and recovery i.e. the so-called machinery provisions. In order to grapple with the real construct of the section and to cast aside clouds of doubt, reference will have to be made to the principles of construction/interpretation of a fiscal statute. I shall turn to that in the proceeding part of the judgment.

2. Firstly, a momentary peep into the self-executing provisions relating to fiscal legislation is in order. With advantage, reference is made to the case of “Nestle Pakistan Ltd. and others versus Federal Board of Revenue and others” (2017 PTD 686) wherein the Court discussed self-executing provisions at para 7 in the following words:

A passage, in the 10th Edn. of NS Bindra's Interpretation of Statues, has dealt with self- executing provisions relating to fiscal legislations, which is also reproduced being relevant to the subject of this judgment:--

“A constitutional provision authorising the levy of a tax is without effect, unless provision for such levy is made by the legislature, but, it fully supplemented by legislation in force at the time of its adoption, it takes effect at once. A provision requiring the legislature to levy a tax at a certain rate has been held self-executing. Provisions that property shall be assessed for taxes under general law and by uniform rules according to its value are self-executing. Moreover, a provision has been held self-executing, which authorised the levy by local officers of a tax to an amount and for purposes specified, subject to compliance with conditions fully stated therein. A constitutional provision limiting the rate of taxation does not require legislative action to enforce it and goes into effect at once, unless it appears from a consideration of the whole instrument that it was the intent of the framers to postpone the operation of the provision until action by the legislature.

Provisions authorising municipal authorities to levy taxes, providing for an increase in the rate in taxation on submission to a vote of the taxpayers, or for assessments by a jury or by commissioners, requiring the legislature to provide a uniform system of taxation, declaring that all taxes shall be uniform to be collected under general laws, declaring that all property shall be taxed in proportion to its value, 'to be ascertained as provided by law,' providing for the payment of certain taxes into the common school fund and for their distribution, declaring that certain kinds of property shall be taxable as provided by law, requiring provision to be made by general laws to prevent the abuse by municipal corporations of the powers of taxation and contracting debts and provisions for the collection of taxes without suit are not self-executing and require supplemental legislation to render them effective. A provision fixing the minimum amount at which patented mining claims shall be assessed is self-executing. Constitutional provisions declaring certain classes of property exempt from taxation are self-executing; but provisions authorising the legislature to exempt specified classes of property, or requiring the exemption of certain property from taxation by general law, are not operative until such legislation is enacted. In all of the cases on this subject, if it appears from the provision that anything remains to be done to complete the objects contemplated, it is to that extent is inoperative, and will remain so until all such requirements are complied with.”

It is recapitulated that a provision is self-executing if rights granted or duties imposed are enforceable in absence of any supplementary legislation; in other words if manifest intention is found in language of the provision that power conferred should go into immediate effect and no ancillary legislation is necessary, then the provision is self- executing. The provision is not self-executing if it indicates merely a line of policy or principles, without giving means by which such policy or principles are to be carried into effect, or it is directed in the provision for framing of Rules through delegated powers to enforce the rights, duties or powers given therein.(emphasis supplied)

1. Hence, the literature contained in books, Law and Practice of Income Tax by Nani Palkivalla and J Kanga and Interpretation of Statue by NS Bindra regarding self-executing provisions clearly spells out that the provision cannot be taken to be self-executing if it is directed in the provision for framing of Rules. In our case as well rules under sub-section (6) of Section 4B are yet to be framed which buttresses that the section is not self-executory as such. However, the impact of non-existence of rules on the application of a statutory provision shall be discussed in the latter half.

2. Furthermore, the learned Bench of this Court while deciding the Writ Petition No. 3522 of 2017 (different from the one reported in (2018 PTD 287), with the same title mentioned in the earlier part) titled “D.G. Khan Cement Company Limited versus Federal Board of Revenue and others” had the occasion to dilate upon the scope of Super Tax under Section 4B of the Ordinance. It was held that:

…. clearly the intention of the legislature is to specify a special procedure in respect of super tax and, therefore Section 4B of the Ordinance is a complete code unto itself. Moreover, by sub-section (6) of Section 4B, the Board may make rules for carrying out the purposes of this section. This further gives powers to the Board to make rules by a notification and which rules may provide all matters for carrying out the purpose of Section 4B. Therefore, although the enumerations of Section 4B do not clearly oust the other provisions of the Ordinance, by necessary intendment the intention of the legislature is to clothe the Commissioner special powers for the assessment and recovery of super tax.

Subsequently this Court in the Writ Petition No. 10477 of 2017 titled “Maple Leaf Cement Factory versus Additional Commissioner Inland Revenue and others” approved of the reasoning of the above referred (supra) case with regard to Section 4B being a complete code.

1. I respectfully do not subscribe to the opinion of the above-referred cases (supra) in particular to the extent of the finding that Section 4B is a complete code on to itself and has to be read independently of all other provisions of the Ordinance specifically mentioned in Section 4B of the Ordinance.

2. In holding this view, I have taken guidance from the principles of construction and rules of interpretation of fiscal statutes and case precedents surrounding them. To set it on the legal plane, reference is made to the case of “Partnership Concern versus The Deputy Collector Central Excise and Sales Tax, Lahore and 3 others” (PLD 1989 Lahore 337) where Rustam S. Sidhwa J. beautifully summarized the getup of the Fiscal Statutes in general by opining:

“18. There are three distinct types of provisions generally in every fiscal enactment. The charging provisions, which relate to the levy or charge of the tax, which usually state that tax is to be levied and on what matter, or goods or income and in which manner and at what rate and matters relevant thereto. The assessment provisions, which deal with the assessment, calculation or quantification of the tax for the purposes of determining the amount of tax due and payable or which has escaped collection or has been under assessed for assessed at a lower rate or on which excessive relief or refund has been allowed. The collection provisions, which relate to the mode and manner of receipt or collection of the tax. The charging sections have to be strictly construed and any benefit found therein has to be given to the tax-payer. However, the assessment and collection provisions are merely the machinery sections and they can be liberally construed.

1. The words “levied”, “charged”, “paid” and “collected” generally used in charging sections do not indicate that assessment provisions or collection provisions are included in the charging sections. These words are only used in a general sense to indicate that the duty or tax would be demanded or collected at the rate or in the manner as provided by the charging section. The procedures as regards assessment and collection are separately provided for.

2. However, it is possible to conceive of cases where the word “levied” or “collected” in the charging sections of certain enactments have perforce to be construed as covering assessment proceedings also, if no separate provisions are found in the enactments to cover assessment proceedings. In such cases the word “levied” or “charged” could validly be construed as including assessment or the entire process of collecting the tax. But this would be on the principle of implied construction or necessity.

3. The words “levied” “charged”, “collected”, “paid” and “payable” are generally found connected with charging sections in fiscal enactments. In charging sections the words “levied” generally means to raise, impose or collect tax or duty. In Abdul Rashid v. Central Board of Revenue and others (PLD 1965 Pesh. 249) the word “levied”, as used in Articles 48 and 237 of the Constitution of 1962, was held to relate to the charging provision i.e. fixation of a rate of duty. By itself the word “levied”, charged” and “collected” does not impose the charge. The charge or imposition arises by virtue of the language of the charging section itself. These words only point or give indication to the element of demand, namely, that it will be demanded, claimed or collected at the rate and/or in the manner provided in the charging section. However, apart from charging sections, the word “levy” or “levied” in other parts of fiscal enactments could indicate not only the power to impose or raise a tax or duty, but also to assess or collect the same, depending upon how, where and in what context the word is used and whether such extended meaning is possible. There is no cardinal rule that wherever the word “levy” or “levied” occurs, the element of assessment or collection must be deemed. (emphasis mine)

4. Moreover, in the case reported as “Messrs Multan Electric Power Co. Limited (Mepco) through Chief Executive versus Commissioner, Inland Revenue (Wht), Regional Tax Officer, Multan and another (2016 PTD 2567), the Court observed that:

“9 Statute must be read as an organic whole and all its provisions must be harmoniously reconciled instead of picking out inconsistency between different provisions. The principle of interpretation of statute is that all provisions of a statute have to be read together and harmonious construction is to be placed on such provisions so that no provision is rendered nugatory. ….

1. Needless to observe here that words should be read in their ordinary, natural and grammatical meaning, subject to the rider that in construing the words in the legislative instrument/provision of law, the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude”.(emphasis added).

2. Similarly in “Pakistan Tobacco Company Ltd. versus Federation of Pakistan and others” (2016 PTD 596) the Court opined:

“15 It is settled law that while interpreting fiscal statutes the Court looks at what is clearly said; there is no room for any intendment; nor is there any equity about a tax; there is no presumption as to tax; nothing was to be read in or implied and one could only look fairly at the language used. These principles were stated by Rowlett J regarding the interpretation of fiscal statutes in the case of 'Cape Brandy Syndicate v. Inland Revenue Commissioner', (1921) 1 KB 64. The taxing statute has to be interpreted strictly, and as a corollary any defect or omission cannot be inferred. Moreover, it is settled law that the parameters provided in a taxing statute determines chargeability and levying of a tax. Moreover, the law ought to be interpreted in the case of fiscal statutes by looking at the language in its literal and ordinary meaning. A fiscal statute cannot be declared ultra vires on the touchstone of reasonableness or otherwise, as the same has been declared by the august Supreme Court to be a matter of legislative policy and not for the Court to adjudicate upon.….

20….. It is settled law that unlike the principle of strict construction in the case of charging sections, the machinery provisions are construed liberally so as to effectuate the charging provisions. The august Supreme Court has observed and held in the case of 'Pearl Continental Hotel and another v. Government of N.-W.F.P. and others' [2010 PTD 2018] that 'We are in no doubt that the machinery provisions, where provided, have to be construed liberally and in a manner aiding the realization of proper tax and to prevent avoidance of the tax”.

1. Correspondingly in the case “Allied Motors Ltd. through Manager Finance versus Commissioner of Income-Tax and another” (2004 PTD 1173) while interpreting provisions of Income Tax Ordinance 2001, the Court held, inter alia that:

“a scheme of law is to be examined in its totality and no provision of law is to be considered in isolation”. (emphasis added)

Yet another case precedent is “Commissioner of Income-Tax versus Messrs Kamran Model Factory” (2002 PTD 14) where it was said that:

“The Assessing Officer would have no option but to make an order for levy of Workers' Welfare Fund on the principle of interpretation of statute that every word used in a statute has to be given effect to and no word or provisions of a statute is to be treated as surplusage and redundant. ….”

1. Moreover, in the case of Mustafa Prestressed R.C.C Pipe Works Ltd. Karachi versus Commissioner of Sales Tax Karachi [(1990) 62 Tax 119 (H.C.Kar.)] the Court graciously observed that:

“It is well settled principle of interpretation that all the provisions of an enactment have to be construed harmoniously”.

In the case Hirjana & Co. (Pak) Ltd. Karachi versus Commissioner of Sales Tax, Central Karachi [(1975) 31 Tax 78 (S.C.Pak.)] again the Apex Court had the opportunity of discussing the rules of interpretation to be employed while dealing with fiscal statutes and held that:

“We may here observe that in interpreting the taxing statute the courts must look to the words of the statute and interpret it in the light of what is clearly expressed. It cannot imply anything which is not expressed, it cannot import provisions in the statute so as to support assumed deficiency” .

1. In the case CIT versus Nagina Talkies (property) Karachi [(1974) 29 Tax 115 (H.C Kar.) it was again opined that:

“In fiscal statutes the meaning has to be ascertained from the plain language of the statute and nothing is to be implied in such statute”.

Likewise, in the case “Commissioner of Income-Tax, East Pakistan, Dacca versus Messrs Hoosen Kasam Dada, Karachi” (1960 PTD 574), the Court observed:

“14. In interpreting the statute, one is to see whether a reasonable meaning can be given after reconciling the various provisions contained in the different sections and not to read one section independently of all other sections and give any unreasonable interpretation.”

26. Trawling through the case law and reckoning the principles of interpretation of fiscal laws, I harbour no doubts in saying that Legislature has envisaged application of provisions of assessment and recovery as contained in Chapter X i.e. inter alia Sections 120 and 122 of the Ordinance to Section 4B by employing the term “all” in Section 4B sub-section (3). Similarly sub-section (5) of Section 4B imports the provisions of Part IV, X, XI and XII of Chapter X and Part 1 of Chapter XI with regard to collection and recovery of super tax and finds mention of the following words, “so far as may be, apply to the collection of super tax as these apply to the collection of tax under the Ordinance”.

27. To my mind, the Legislature has used the words consciously and asymmetrically so as to give effect to them and to make sure that no word or provisions of a statute is to be treated as surplusage and redundant when interpreted in its literal and ordinary meaning. It is trite law that provisions in a taxing statute must be harmoniously reconciled instead of picking out any inconsistency between the different provisions. Thus, all provisions of a statute have to be read together and harmonious construction is to be placed on such provisions so that no provision is rendered nugatory. Hence, in so far as the charge/levy of super tax is concerned, Section 4B appears to be an independent provision. However, its sub-sections (3), (4) and (5) need to be read in consonance with each other along with the other provisions of the Ordinance as specified in those sections.

C. CLEAVAGE DUE TO NON-FRAMING OF THE RULES

28. Consequently, this leads me to dilate upon another related ancillary matter i.e. whether Section 4B could be applied to recover the amount without framing of rule by the Board as envisaged by sub-section (6) of 4B of the Ordinance? Sub-Section 4B of the Ordinance says that the Board may make rules for carrying out the purpose of Section 4B. The Hon’ble Supreme Court has settled this question in the case “Shahid Pervaiz versus Ejaz Ahmad” (2017 SCMR 206) where it opined that:

“It is settled law that the operation of a statute or any statutory provision is not dependent upon framing of the Rules. In some cases the absence of Rules may affect the enforceability or operatability of the statute…The framing of Rules would be generally relevant for determining as to whether the power under the statute has been exercised properly or not, but the existence of Rules could neither save nor destroy the constitutional validity of the Rules”.

D. APPLICABILITY OF SECTION 122 ON TO SECTION 4B

29. Now coming to the question, while bearing in mind the discussion elaborated previously, whether the stand-alone provisions of Section 4B of the Ordinance allow incursion of Section 122(5A) read with 122(9) of the Ordinance? In other words, whether Section 4B exclusively clothes the Commissioner with the special powers for the assessment and recovery of super tax and precludes the machinery provisions of the Ordinance i.e. Sections 122(5A) read with 122(9)? The answer is in the negative for the reasons extensively dealt in the earlier part of this judgment where it was said that Section 4B of the Ordinance does not preclude the scope of other sections i.e. Sections 122(5A) and 122(9) of the Ordinance as express reference has been made to them in Section 4B of the Ordinance. Following the principles of interpretation, they have to be read in consonance with each other.

1. Noticeably the Legislature has envisaged a broad sweep application of the provisions of Chapter X of the Ordinance which entails Section 122 and is clear from the wording of sub-section (3) of 4B of the Ordinance. Moreover, sub-section (5) of Section 4B also imports machinery provisions of the Ordinance as discussed extensively in afore referred paras of the judgment. As a corollary, it follows that Section 4B along with its sub-sections ought to be read in conjunction with the machinery provisions of the Ordinance i.e. Section 122. Hence the Commissioner can very well invoke and utilize the provisions of Section 4B read with Section 122(5A) read with 122(9) of the Ordinance.

E. ASPECT OF DELEGATION

1. Another question which crops up amidst this controversy, which is crucial and connected, is whether the power to assess and determine liability for the purposes of super tax under Section 4B vests exclusively with the Commissioner Inland Revenue or the same could be delegated to the Additional Commissioner Inland Revenue for invoking the machinery provisions i.e. 122(5A) read with 122(9) of the Ordinance? It is noteworthy to mention that the scheme of the Ordinance in respect of the powers and functions of the Respondents is such that upon filing of the return by a tax payer, such return becomes an assessment order of the Commissioner Inland Revenue under the scheme of universal self-assessment captured by Section 120 of the Ordinance.

2. The Commissioner Inland Revenue is then empowered under sub-sections (5) and (5A) of Section 122 to amend and revise such assessment orders after ensuring that the conditions laid down for the exercise of jurisdiction with respect to the afore said provisions are duly met. As aptly pointed out in the Division Bench judgment reported as “Pak Telecom Mobile Ltd. and others versus Federal Board of Revenue through its Chairman, Islamabad and others” (2013 P T D 2151) of the Islamabad High Court at para 9:

“assessment made under Section 122(5A) of the Income Tax Ordinance, 2001 is previously a conversion of return of income tax into assessment order by legal fiction, as the law deems a return to be an assessment order. Consequently it could be amended under Section 122(5A) by the Commissioner”.

In the same judgment, the power of delegation by the Commissioner was discussed in the following words:

“The Commissioner could delegate the powers and functions under Section 122(5A) of the Income Tax Ordinance, 2001 to an officer not below the rank of Additional Commissioner, therefore, he has validly delegated these powers, vested in him as provided by Section 210 of the Income Tax Ordinance”.

33. It is evident that under Section 210 of the Ordinance, the Commissioner can delegate his powers and functions. Further Section 210 (1A) reveals that the power in terms of Section 122(5A) regarding amendment of assessment could not be delegated below the rank of the Additional Commissioner.

1. The contention of the Petitioner that delegation cannot be done while assessing and determining the liability for super tax is fallacious. This fact is strengthened from bare reading of Section 210(1) of the Ordinance which reads as follows:

The Commissioner [subject to sub-section (1A),] may, by an order in writing, delegate to any [Officer of Inland Revenue, subordinate to the Commissioner] all or any of the powers or functions conferred upon or assigned to the Commissioner under this Ordinance, other than the power of delegation. (emphasis added).

35. Bare reading of the section manifestly lays down that delegation of power could be done under the Ordinance subject only to sub-section (1A). Therefore, without imputing a stretched meaning into the taxing statute, it is clear that Section 210 applies to Section 4B of the Ordinance as well. In other words, all those sections in the Ordinance which deal with the powers and responsibilities of the Commissioner, the-said powers could very well be delegated by the Commissioner as per the mandate of Section 210 of the Ordinance. Section 4B is indeed part of the Ordinance being one of the sections so the applicability of Section 210 cannot be excluded.

36. Moreover, it is suffice to observe that Section 4B does not specifically exclude applicability of Section 210 from its purview. In fact sub-section (5) of Section 4B imports the provisions of Part IV, X, XI and XII of Chapter X and Part 1 of Chapter XI with regard to collection and recovery of super tax and finds mention of the following words, “so far as may be, apply to the collection of super tax as these apply to the collection of tax under the Ordinance”. It is worth mentioning that Section 210 falls under Chapter XI, which finds mention in sub-section (5) of 4B of the Ordinance. It is clear from the language of Section 4B that not only provisions of recovery but provisions of assessment of the Ordinance which collectively could be referred as the machinery provisions of the Ordinance have also been made applicable to it.

1. In this regard it is pointed out that the powers under Section 122(5A) read with 122(9) of the Ordinance, so vested, were initially conferred by the Legislature in 1959 by enshrining Section 34 in repealed Income Tax Act, 1922. Identical provisions were the part of repealed Income Tax Ordinance, 1979, in which, same were expressed as Section 66-A. Simultaneously, the same have been incorporated by way of now Section 122(5A) read with sub Section 9 of the Ordinance. As opined in the case “Pak Telecom Mobile Ltd. and others versus Federal Board of Revenue through its Chairman, Islamabad and others (supra), “the current Income Tax Ordinance, 2001 has introduced a legal fiction whereby all acts are done in the name of Commissioner. In order to avoid controversies, the powers have been delegated to subordinate officers. In this regard, attention is drawn to Article 90 of the Constitution, which provides that the executive authority of the Federation shall be exercised in the name of the President.”

2. This brings me to the question of authority of the Additional Commissioner under Section 122(5A) of the Ordinance. This issue was settled by the below referred decision of the Hon'ble Supreme Court in the case of “Messrs Ocean Pakistan Ltd versus Federal Board of Revenue, Islamabad and others” (2012 PTD 1374). The August Court, while approving of the delegation of powers to the Additional Commissioner, observed inter alia, “that the petitioner can raise all possible factual and legal objections before the authority, which has sought its explanation by issuing show-cause notice.”

39. Now that I have discussed and established that the delegation could be validly done under the Ordinance and its applicability cannot be precluded from Section 4B of the Ordinance, it will be in order to mention that for constituting a valid delegation of powers under Section 210(1) of the Ordinance, certain conditions must be satisfied. In the case bearing W.P No. 27535 of 2016 titled Jahangir Tareen Khan vs. Federation of Pakistan etc. this Court held that in order to constitute a valid delegation, the following conditions must be satisfied:

(a) The delegation must be in writing;

(b) The delegation order must specify precisely the powers and functions of the Commissioner Inland Revenue that have been delegated to the delegate;

(c) The delegation order must specify the persons in respect to whom the powers and functions of the Commissioner Inland Revenue have been delegated.”

1. In the latter part, I will discuss whether the Jurisdiction Order dated 29.07.2016 relied upon by the counsel for the Respondents satisfy the above-referred conditions.

F. DOCTRINE OF RIPENESS AND ITS EFFECT ON SHOW CAUSE NOTICE

41. Now coming to the point whether writ petition is maintainable against show-cause notice, it will be in the fitness of things to take guidance from the dictum of the case precedents developed on this particular issue. It will emerge that the consistent view of the Courts has been that a mere show-cause notice is not an adverse order. However, the Court in exercise of its Constitutional jurisdiction could take up writs to challenge the show-cause notice if it is found that the show-cause notice is totally non est i.e. want of jurisdiction of the issuing authority or has been issued mala fidely i.e. merely to harass the subject.

1. First in line is the case “Mughal-e-Azam Banquet Complex through Managing Partner versus Federation of Pakistan through Secretary” (2011 PTD 2260) where “doctrine of ripeness” was elaborated by Syed Mansoor Ali Shah, J. in the following words:

2. The other aspect of the matter is that mere issuance of Show-Cause Notice does not mean that the case will invariably be decided against the petitioner and there is always a possibility that the same may be decided in favour of the petitioner. Laying challenge to a show-cause notice is, therefore, no different that filing a petition on the basis of an apprehension or a speculation. Such a petition is premature and not ripe for adjudication. “Just as a case can be brought too late, ...it can be brought too early, and not yet be ripe for adjudication... until the controversy has become concrete and focused, it is difficult for the Court to evaluate the practical merits of the position of each party. “The basic rational behind the “Ripeness” doctrine is “to prevent the courts through avoidance of premature adjudication, from entangling themselves, in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” “Ripeness” requires that an issue be sufficiently formed and felt to be a justifiable controversy...As courts insist on a concrete context, that context enables them to better see the problems that they are supposed to redress. As courts insist on completed agency action, that insistence may (1) eliminate the waste of courts deciding disputes that might be mooted as an agency runs its course, (2) assure the courts of the knowledge gained from applied agency expertise, and (3) provide them with a record already developed by the agency. .….

3. Petitioner, however, can invoke the constitutional jurisdiction of this Court, if the Show-Cause Notice is not issued by a competent authority or the liability in the Show- Cause Notice is palpably unlawful and without jurisdiction. This is not so in the present case. Show-Cause Notice is admittedly issued by a competent authority and its contents do not prima facie reveal that the liability is ultra vices the law.

4. The Court in “Messrs Siemens Aktiengesellschaft (“Siemens AG”) 2 through Authorized Person versus Pakistan through Secretary Revenue Division and 3 others” (2016 PTD 1158), aptly explained the meaning of the phrase “show-cause notice” and went on to explain how a Petitioner could come within the fold of an aggrieved person when filing a writ against the show-cause notice in the following terms:

“While exercising jurisdiction under Article 199 of the Constitution, the powers of a High Court are circumscribed by certain limitations and trappings, as expressly provided therein. The petitioner invoking jurisdiction has to satisfy the Court that it comes within the fold of an 'aggrieved party'; there is no other adequate remedy provided by law; the person against whom relief is being sought satisfies the test laid down in sub-article (5) of Article 199 of the Constitution, and no disputed question of fact is involved.

A person is aggrieved if rights are infringed or an adverse order has been passed affecting or threatening to affect rights. The question for this Court to answer, therefore, is whether a show-cause notice can be treated as an adverse order. If the answer is in the negative, then under what circumstances may a show-cause notice make a person an aggrieved party for the purposes of Article 199 of the Constitution.

We may start with the determination of the nature of the instrument known as a 'Show Cause Notice'. The Black's Law Dictionary, 8th Edition, defines the 'show-cause' as “to produce a satisfactory explanation or excuse, usu. in connection with a motion or application to a Court”. Likewise, 'notice' is defined as “legal notification required by law or agreement, or imparted by operation of law as a result of some fact (such as the recording of an instrument); definite legal cognizance, actual or constructive, of an existing right or title. A person has notice of a fact or condition if that person (1) has actual notice of it; (2) has received information about if; (3) has reason to know about it; (4) knows about a related fact; or (5) is considered as official filing or recording”. 'Due notice' is defined as “sufficient and proper notice that is intended to and likely to reach a particular person or the public; notice that is legally, adequate given the particular circumstance”, 'Reasonable notice' is defined “notice that is fairly to be expected or required under the particular circumstances”. Words and Phrases, Vol. 28-B, Permanent Edition, inter alia, describes a 'notice' as meaning 'intelligence by whatever means communicated; information; knowledge; a constitutional requirement of due process, which includes allegations, opportunity to answer, and trial according to some settled course of procedure'.

A show-cause notice is essentially an instrument whereby an authorised person under the law informs a person regarding allegations, material or facts which may form the basis for proceedings against such person, and may eventually culminate in an adverse order. A show-cause notice is indeed the first requirement of compliance with 'due process' to inform the person against whom proceedings are intended to be initiated. The purpose is to put the person to notice by giving sufficient information so as provide an adequate opportunity of submitting an explanation. An authorised person empowered under the law, after issuing a show-cause notice, is under a mandatory obligation to provide a purposive and meaningful opportunity of hearing, depending on the facts and circumstances in each case, allow the person proceeded against to produce evidence and where necessary an opportunity of cross-examination. After incorporation of Article 10-A of the Constitution the aforementioned requirements have become an integral part of the fundamental right of 'due process'.

Show-Cause Notice is, therefore, the first step of the proceedings in compliance with the mandatory requirements of due process. By no stretch of the imagination can a show-cause notice be treated or construed as an adverse order, so as to make a person an aggrieved person or party within the context of Article 199 of the Constitution. It is, rather, to enable the person, the subject, to rebut the allegations contained in the show-cause notice. If satisfied with the explanation, the authorised officer is under a statutory duty to vacate the show-cause notice and terminate the proceedings. However, the only two exception which may give a cause of grievance and thus make a person an aggrieved person in the context of Article 199 of the Constitution are, firstly, when it is issued by a person who is nod authorised under the law or conferred with the power or jurisdiction and, secondly, when the powers and jurisdiction have been exercised by an authorised person for purposes alien to the empowering statute i.e. exercised for mala fide reasons. These are the only two exceptions ordinarily recognised in the precedent law which would make a person an 'aggrieved party' for the purposes of Article 199 of the Constitution, and thus invoke the jurisdiction there under.

1. In case titled “Dr. Seema Irfan and others versus Federation of Pakistan” (PLD 2019 Sindh 519) the Court discussed the cases with regard to the maintainability of writ against show-cause notice in the following words:

---This court in exercise of its extraordinary constitutional jurisdiction may take up writs to challenge the show-cause notice if it is found to be lack of jurisdiction, barred by law or abuse of process of the court or coram non judice and obviously in such situation, may quash it but not in every case filed with the expectation and anticipation of ad-interim order by the assesse.

1. The Court in supra judgment further discussed judicial precedents at para 17 with regard to challenge to the show-cause notice and maintainability of writ petitions:

2. 2002 SCMR 805 (Khalid Mahmood Ch. v. Government of the Punjab). Disputed show-cause notice was still at preliminary stage. Competent Authority after considering petitioners' replies, if came to the conclusion that it was a case of taking further proceedings under the Ordinance then it would be required to constitute an Enquiry Committee or appoint an Enquiry Officer. Constitutional petition had rightly been held to be premature and dismissed as such.

3. 2011 PTD 2103 (Karachi Bulk Storage and Terminals (Pvt.) Ltd. v. Collector of Central Excise and Land Customs). Constitutional petition challenging issuance of show-cause notice by authority. Petition involving questions as to whether such notice was issued with lawful authority or not; and whether interpretation of Section 2(6) of Sales Tax Act, 1951 made by authority was in accordance with law or not. Petitioner had questioned jurisdiction of authority and its action in issuing such notice was alleged to be prejudicial, unjust and mala fide. Constitutional petition was maintainable in circumstances.

INDIAN PRECEDENTS

1. Discussion on maintainability of writ against show-cause notice has been extensively dealt with by the Superior Court of India in the following pronouncements:

2. Union of India (UOI) and others v. Vicco Laboratories (2007) 13 SCC 270

Normally, the writ court should not interfere at the stage of issuance of show-cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the concerned authorities and to satisfy the concerned authorities about the absence of case for proceeding against the person against whom the show-cause notices have been issued. Abstinence from interference at the stage of issuance of show-cause notice in order to relegate the parties to the proceedings before the concerned authorities is the normal rule. However, the said rule is not without exceptions. Where a Show Cause notice is issued either without jurisdiction or in an abuse of process of law, certainly in that case, the writ court would not hesitate to interfere even at the stage of issuance of show-cause notice. The interference at the show-cause notice stage should be rare and not in a routine manner.

1. SBQ Steels Limited v. The Commissioner of Customs, Central Excise and Service Tax, Guntur Commissionerate. 2013 (2) ALD 158

It is off course true that the show-cause notice cannot be read hyper-technically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show-cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show-cause notice does not commence a fair procedure especially when it is issued in a quasi- judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence. Therefore, while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and specially when he has the power to take a punitive step against the person after giving him a show-cause notice.

1. State of Uttar Pradesh v. Brahma Datt Sharma (1987) 2 SCC 179.

The High Court was not justified in quashing the show-cause notice. When a show-cause notice is issued to a Govt. servant under a statutory provision calling upon him to show-cause, ordinarily the Govt. servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show-cause notice is to afford opportunity of hearing to the Govt. servant and once cause is shown it is open to the Govt. to consider the matter in the light of the facts and submissions placed by the Govt. servant and only thereafter a final decision in the matter could be taken. Interference by the Court before that stage would be premature.

1. The Special Director and others v. Muhammad Ghulam Ghouse and others AIR 2004 SC 1467, This Court in a large number of cases has deprecated the practice of the High Court's entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show-cause notice was totally non est. in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection, not granted.

2. Union of India and others v. Kunisetty Satyanarayana AIR 2007 SC 906, The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.

3. M/s. Kirloskar Computer Service Limited, Bangalore v. Union of India and others 1997 (73) ECR 651 (Karnataka), Court interference is justifiable only if the excise authorities have acted beyond the scope of the power available to them under the statute, i.e. if they have acted without jurisdiction. When the authorities are fully empowered to decide whether computer software development on a commercial scale amounts to manufacture or not, there decision, whether correct, partially correct, or even incorrect, is fully within their jurisdiction. Their finding cannot be said to be without jurisdiction merely because it adversely affects the assessee. As there is no inherent lack of jurisdiction in the CCE's order, the Court declines to intervene in the matter. The test for determining whether the order is competent, is not whether the same is as accurate as ought to be, but whether the power which the authority has involved to pass the order is truly available to it under the statute. If the answer be in the affirmative it would matter little whether the conclusion drawn by the authority was wholly correct, partially correct and partially incorrect or wholly incorrect, if the Collector eventually comes to a conclusion adverse to the petitioner, the same can be assailed in appeal before the prescribed appellate authority, but just because the Collector may pass an order which may not be to the liking of the petitioner, or may not eventually stand the test of scrutiny by a higher authority or Court would not affect the jurisdiction of the Authority to pass an order. In other words the jurisdiction to pass an order is different from a duty to pass a correct order. If there is no inherent lack of jurisdiction then just because the order that the Authority has passed or may propose to pass is not or may not be a correct order is no reason why the authority should be prevented from exercising its jurisdiction. Similarly if the Authority lacks inherent jurisdiction to pass an order, then even if the conclusion arrived at by it on merits may be legally unexceptionable, the order shall have to be set aside. Law not only requires that correct orders should be passed by it also requires that the same must be passed by the Authorities competent to do so. The remedy against an incorrect order passed by an Authority competent to do so is not a short cut to the High Court but recourse to the statutory remedies prescribed by the Act.

4. Sequentially in the case of “Mari Petroleum Company Limited through General Manager Finance, Islamabad versus Federation of Pakistan through Secretary Revenue, Islamabad and 3 others” (2019 P T D 1774), it was observed:

“It is well settled that mere issuance of a show- cause notice does not amount to an adverse action.…. It is also well settled that a writ petition against the mere issuance of a show-cause notice is not maintainable unless the same is wholly without jurisdiction and in violation of a statute. ….”

Similarly in the case “Messrs Attock Gen Ltd versus Additional Commissioner (Audit), Largetaxpayer Unit, Islamabad and 3 others” (2019 MLD 870) the Court opined that:

“18. It would be pertinent to refer to the precedent law expounded by the Supreme Court of India with regard to entertaining constitutional petition when the challenge is against a show-cause notice. It is well settled principle propounded by the Court that ordinarily no writ lies against a show-cause notice. It has been a consistent view of the Court in India that a mere show-cause notice is not an adverse order and, therefore, the petition invoking jurisdiction against a show-cause notice is considered premature. The rational or reason is discussed in various judgments. It is noted that the authority after hearing the subject and considering the explanation or reply, if satisfied, may drop the proceedings. The only two exceptions to the rule that ordinarily writ will not be issued against a show-cause notice are, (a) when the Court is satisfied that the show-cause notice is totally non est. i.e. want of jurisdiction of the issuing authority and (b) issued mala fidely e.g. to merely harass the subject. ….”

1. In the light of the settled principles, it may be concluded as follows:--

(i) Show-cause notice is not an adverse order unless it could be clearly shown to the satisfaction of the Court that it has been issued by an authority not vested with jurisdiction or it was issued for mala fide reasons.

(ii) The exception relating to want of jurisdiction does not include every jurisdictional error. A wrong exercise of jurisdiction or interpretation of the law cannot be treated as want of jurisdiction.

(iii) Constitutional jurisdiction is exercised if the Court is satisfied that the person is an 'aggrieved party' within the context of Article 199 of the Constitution and no adequate remedy is provided by law. If adequate statutory remedies are provided under the relevant statute, it is to be taken into consideration while exercising discretion under Article 199 of the Constitution.

(iv) By passing or circumventing statutory forums is to be discouraged.

(v) The approach should be to advance the object and purpose of a statute and every effort made to uphold the sanctity of the legislative intent rather defeating it”.

1. In the case of “Collector of Sales Tax vs. Khurshid Spinning Mills Limited & Another” (2017 PTD 196) [Lahore], the Court held that:

“Objection qua jurisdiction is a basic lacuna on assumption of jurisdiction, which can be raised at any stage of proceedings including the appeal inasmuch as it goes to the very root of the matter and renders entire proceedings coram non judice”

Further in the case “Zaver Petroleum Corporation vs. Federal Board of Revenue & another (2016 PTD 2332). It was observed as under:

“20. Lastly I shall advert to the question of maintainability of the petition. There is no cavil to the proposition that a mere notice or a show-cause notice is not an adverse order and, therefore, a petition under Article 199 of the Constitution would not be competent. The exception to this general rule is a grievance relating to the notice or show-cause notice suffering from want of jurisdiction. It has been held by the august Supreme Court in the judgment titled “Commissioner of Income Tax v. Eli Lilly Pakistan (Pvt.) Ltd.” [2009 SCMR 1279] that the rule barring jurisdiction in the case of exercising powers under Article 199 of the Constitution when a show-cause notice has been assailed is not an absolute rule, but rather a rule by which the jurisdiction is regulated. The exercise of jurisdiction in the case of a show-cause notice has been held to be justified when the said notice is palpably without jurisdiction and/or issued on the basis of mala fide. Reliance is placed on “Gatron (Industries) Ltd. v. Government of Pakistan and others” [1999 SCMR 1072] and “Murree Brewery Co. Ltd. v. Pakistan through Secretary to GOP, Works and Division and 2 others” [PLD 1972 SC 279]

1. For what has been discussed above, the instant petitions are allowed. The show-cause notices are declared as having been issued by persons not vested with power or jurisdiction. However, it shall be open for the Commissioner or such officer vested with the powers and jurisdiction to adjudicate under Section 11 of the Act of 1990, if he deems necessary, to issue fresh show-cause notices”.

2. Similarly, in the following long line of cases, referred below, the common thread running through in all of the decisions is that the writ is maintainable against a show-cause notice if the same is, inter alia, suffering from want of jurisdiction.

(1) “Chaudhary Sugar Mills Limited vs. Chief Commissioner & 2 others” (2016 PTD 527) [Lahore]

“Superior courts have already held that if the liability in the show-cause notice is palpably unlawful or show-cause notice is ultra vires, without jurisdiction or with mala fide intent, such action is to be nipped in the bud”. [Para 13]

(2) “Oil and Gas Development Company Limited vs. Federal Board of Revenue and 2 others” (2016 PTD 1675) [Islamabad]

“Lastly I shall advert to the question of maintainability of the petition. There is no cavil to the proposition that a mere notice or a show-cause notice is not an adverse order and, therefore, a petition under Article 199 of the Constitution would not be competent. The exception to this general rule is a grievance relating to the notice or show-cause notice suffering from want of jurisdiction”. [Para 20]

(3) “Kk Oil and Ghee Mills (Private) Limited vs. Federal Board of Revenue and others” (2016 PTD 2601) [Islamabad]

“There is no cavil to the proposition that a mere notice or a show-cause notice is not an adverse order and, therefore, a petition under Article 199 of the Constitution would not be competent. The exception to this general rule is a grievance relating to the notice or show-cause notice suffering from want of jurisdiction”. [Para 13]

(4) “Messers J.K. Brothers Pakistan (Private) Limited vs. The Additional Commissioner Inland Revenue and another” (2016 PTD 461) [Lahore]

“The objection of the learned counsel for the respondents that the writ petition against impugned show-cause notice was not maintainable, is not of much substance. If an act is illegal and facts of the case confirm the said illegality, there is no bar in exercising writ jurisdiction. Superior courts of the country have already held that if the show-cause notice is ultra vires, without jurisdiction or with mala fide intent, such action is to be nipped in the bud. Reference, in this regard, can be made to the case of Mughal-E-Azam Banquet Complex 2011 PTD 2260 and Northern Power Generation Company Ltd. v. Federation of Pakistan and others (2015 PTD 2052)”. [Para 8]

(5) “Commissioner of Income Tax vs. Eli Lilly Pakistan Limited & others” (2009 SCMR 1279)

“The tendency to bypass the remedy provided in the relevant statute and to press into service constitutional jurisdiction of the High Court was to be discouraged, though in certain cases invoking of such jurisdiction instead of availing the statutory remedy was justified, e.g. when the impugned order/action was palpably without jurisdiction and/or mala fide. To force an aggrieved person in such a case to approach the forum provided under the relevant statute may not be just and proper. [ Para 56]

Once a party opted to invoke the remedies provided for under the relevant statute, he could not at his sweet will switch over to constitutional jurisdiction of the High Court in the mid of the proceedings in the absence of any compelling and justifiable reason. [Para 56]

In the instant cases too, the jurisdiction of the Income Tax authorities to issue the impugned show-cause notices was successfully brought under challenge before the High Courts and it was found that the notices were not competently issued in view of the prospective application of the provisions of Section 122 of the Ordinance”. [ Para 56]

(6) “Muslim Commercial Bank Limited vs. Deputy Commissioner of Income-Tax & others” (2004 PTD 1901) [Karachi]

“Where the show-cause notice is so patently illegal, void or wanting in jurisdiction that any further recourse to alternative remedy might only be counterproductive and by invoking Article 199 the mischief could forthwith be nipped in the bud then in such matters existence of alternative remedy would not bar the exercise of Constitutional jurisdiction”. [ Para 18, Headnote H]

(7) “Al Ahram Builders (Private) Limited vs. Income Tax Tribunal” (1993 SCMR 29)

“The tendency to bypass remedy provided under the relevant statute to press into service constitutional jurisdiction of the High Court has developed lately, which is to be discouraged. However, in certain cases invoking of constitutional jurisdiction of the High Court instead of availing of remedy provided for under the relevant statute may be justified, for example when the impugned order/action is palpably without jurisdiction and/or mala fide. To force an aggrieved person in such a case to approach the forum provided under the relevant statute may not be just and proper”. [Para 9]

(8) “Murree Brewery Co Ltd vs. Pakistan Through The Secretary To Government of Pakistan Works Division and 2 others”(PLD 1972 SC 279)

“The rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. One of the well recognized exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party”. [Pg 287 Headnote A]

1. In the case of “Ocean Pakistan Limited versus Federal Board of Revenue & other” (2012 PTD 1374) the Hon’ble Supreme Court while, observing that the reply to show-cause notice contained all the objections with regard to application of law i.e. the Ordinance, 1979 or the Ordinance, 2001; the question of liability of the Petitioner, including challenge to the competency of the Additional Commissioner Inland Revenue to issue show-cause notice, remarked that:

“All the legal objections raised in the proceedings by petitioner company, are similarly raised before the competent forum who has issued the show- cause notice, any finding on any of the legal objections by this Court is likely to cause prejudice to the case of the petitioner company before the income tax hierarchy.In view of the facts noted herein above i.e. filing of reply to show-cause notice by the petitioner-company wherein all objections raised before us, noted hereinabove, have been duly raised before the competent forum, and that there is no final determination by the competent authority on the issues involved in the matter, coupled with the fact that the petitioner can raise all possible factual and legal objections before the authority, which has sought its explanation by issuing show-cause notice, we intend to agree with the findings recorded by the learned Single Judge in Chambers of the High Court by means of the impugned judgment; as such this petition is dismissed being devoid of merits”.

51. Writ against show-cause notice is maintainable in present case because show-cause notices have been issued by incompetent authority. The case mentioned (supra) is not applicable to the peculiar set of circumstances in the case in hand. However, the point in mentioning it is to state that all the objections as mentioned above including challenge to the competency of the authority, that issued the show-cause notice, could also be raised before the authority issuing the show-cause notice.

52. Moving further, it is reiterated that the Courts in the afore referred cases have held that issuance of a show-cause notice is itself a complete act and decision which could be subject to judicial review if inter alia, the show-cause notice was not lawfully issued by the competent authority, if the issuance of the show-cause notice was ultra vires the relevant law and if the issuance of the show-cause notice was without jurisdiction or with mala fide.

VII. ANALYSIS

53. The whys and wherefores lead me to a finale that whether in the case in hand the show-cause notice has been issued without jurisdiction and is non est in the eye of law? For that purpose a glance at the jurisdiction order dated 29.07.2016 relied upon by the Respondents is quintessential in order to see the scope of delegation and the nomenclature of the delegatee. In the present case, it is seen that the show-cause notices were issued by the Additional Commissioner, (Audit) Range-1, Zone-Corporate, Inland Revenue whereas the authority or delegation as per the jurisdiction order was given to the Officer Inland Revenue as could be seen from the below referred order:

Table

| | | | | | --- | --- | --- | --- | | Sr. # | Authority | Function in relation to which powers are delegated | Area of jurisdiction/class of persons | | (1) | (2) | (3) | (4) | | | Officer Inland Revenue assigned the charge of investigation & Prosecution Unit-II, Corporate Zone, RTO Multan ---------- | i) Under the Income Tax Ordinance, 2001 (a) Exercise power under Section 176 (except in respect of Banks and financial institutions, which is subject to approval of the Commissioner). (b) Impose penalty under Part X of Chapter-X in respect of cases other than under audit on non-compliance of statutory notices; (c) Any other power and function specially assigned/ delegated by the Commissioner Inland Revenue (Corporate Zone), RTO, Multan. ------------- | Cases as may be specifically assigned by the Commissioner or the Chief Commissioner or the Board. ----------- | | 2 | ----------- | ----------- | ------------- |

1. This in turn gives rise to two anomalies. Firstly, whether delegation could be made for Section 122 of the Ordinance under Section 210 to an officer below the rank of the Additional Commissioner. Secondly, whether the ingredients constituting a valid delegation were fulfilled in this case? In order to comment upon these vital questions, it is worth mentioning that the nomenclatures of the posts cannot be taken lightly as Section 207 of the Ordinance lays down the structure of the Federal Board of Revenue which is as follows:

(i) Chief Commissioner (Administrative Head)

(ii) Commissioner

(iii) Additional Commissioner

(iv) Deputy Commissioner

(v) Assistant Commissioner

(vi) Officer Inland Revenue

55. At the cost of repetition, it is reiterated that although under Section 210 of the Ordinance the Commissioner can delegate h is powers and functions but Section 210 (1A) clarifies that the power in terms of Section 122(5A) regarding amendment of assessment could not be delegated below the rank of the Additional Commissioner. In the present case the authority was given to the Officer Inland Revenue which could not have been done as per the spirit of the Ordinance. Moreover the Jurisdiction Order dated 29.07.2016 does not meet the criteria and the conditions stipulated in the case W.P No. 27535 of 2016 titled Jahangir Tareen Khan vs. Federation of Pakistan etc, mentioned above for constituting a valid delegation as the powers and functions have not been specified particularly with regard to Section 122 of the Ordinance.

1. For the reasons adumbrated above, the writ petition is allowed and the show-cause notices dated 22.12.2017 and 3.01.2018 are declared to be without lawful authority and of no legal effect hence totally non est. in the eye of law for absolute want of jurisdiction.

(Y.A.) Petition allowed

[1]. A Matter of Interpretation: Federal Courts and the Law - New Edition (The University Center for Human Values Series Book 47) Kindle Edition by Justice Antonin Scalia, Judge, US Supreme Court.

PLJ 2020 Lahore 459 (DB)[Multan Bench Multan]

Present:Abid Aziz Sheikh and Muzamil Akhtar Shabir, JJ.

COMMISSIONER INLAND REVENUE--Petitioner

versus

Messrs RASHID AND SAQIB TRADING COMPANY, POLICE LINES SAHIWAL--Respondent

T.R. No.6 of 2018, decided on 14.11.2019.

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

----Ss. 133 & 221--Declaration turnover--Assessee in default--Issuance of show-cause notice--Filling of appeal--Dismissed--Recitification application--Allowed--Rectification application being allowed and original order of Tribunal being set aside, this reference application is maintainable in view of law settled in afore-noted judgment--Record shows that for tax year 2010-2011, respondent was found to be an assessee in default by Tribunal in its original order on basis of its declared turnover of Rs. 50,00,000/- for tax year 2009--Tribunal has assessed matter in detail and after applying its judicial mind did not agree with contentions of assessee and found respondent to be an assessee in default--Said order could not be rectified under Section 221 of Ordinance being an error on face of record but if respondent was aggrieved due to some legal defect in order, same could only be challenged before next forum--In view of above discussion, impugned order is not sustainable being beyond scope of Section 221 of Ordinance--Application was allowed.

[Pp. 461 & 462] A, B & D

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

----S. 122--Mistake--Scope of--“Error” or “mistake” is so manifest and clear which if permitted to remain on record may have material effect on case. [P. 461] C

Mr. Rasheed Ahmad Joiya, Advocate/Legal Advisor, FBR for Petitioner.

Malik Mumtaz Hussain Khokhar, for Respondent.

Date of hearing: 14.11.2019.

Order

In this reference application under Section 133 of the Income Tax Ordinance, 2001 (“Ordinance”), the following questions of law are raised arising out of the Appellate Tribunal Inland Revenue, Lahore Bench (“Tribunal”) order dated 14.12.2017:-

(i) “Whether in the facts and circumstances of the case the learned ATIR was justified to rectify order under Section 221 of the Income Tax Ordinance, 2001 ignoring the definition of the prescribed person in terms of section under Section 153(9)(g) of the Income Tax Ordinance, 2001 prior to its amendment through Finance Act, 2010?”

(ii) “Whether the Appellate Tribunal has not travelled beyond the scope of its powers and jurisdiction by reviewing its earlier order under the garb of rectification after entertaining long drawn arguments which is not permissible under the scope of Section 221 of the Income Tax Ordinance, 2001?”

(iii) Whether an order passed by the Appellate Tribunal consciously with application of mind after minutely the facts and circumstances of the case and law applicable can be subsequently rectified by the Tribunal under the provision of Section 221 of the Income Tax Ordinance, 2001?”

1. The relevant facts are that the learned Tribunal vide order dated 05.04.2017 dismissed the appeal of the respondent-assessee, however, on rectification application under Section 221 of the Ordinance, the said order was set aside through impugned order dated 14.12.2017.

2. Learned counsel for the petitioner submits that the order passed in appeal could not be set aside through rectification application. Learned counsel for the respondent, on the other hand, submits that this reference application is not maintainable against the order passed on miscellaneous application and further, the error being apparent on the record the same was correctly rectified by the Tribunal.

3. Arguments heard. So far as the question of maintainability of this reference application is concerned, the learned Division Bench of this Court in the case of Messrs Hong Kong Chinese Restaurant, Main Boulevard Gulberg, Lahore v. Assistant Commissioner of Income Tax, Circle 6, Lahore and others (2002 PTD 1878) held that where rectification application is dismissed by Tribunal, the reference application before this Court is not maintainable because the order does not merge into final order. However, if rectification application is allowed and the original order of the Tribunal is set aside, then said order will become part of the original order and reference application will be maintainable before this Court. In the present case, the rectification application being allowed and original order of the Tribunal being set aside, this reference application is maintainable in view of the law settled in the afore-noted judgment.

5. On merits of the case, the record shows that for tax year 2010-2011, the respondent was found to be an assessee in default by the Tribunal in its original order dated 05.04.2017 on the basis of its declared turnover of Rs. 50,00,000/- for tax year 2009. The plea of the respondent that revised return of tax year 2009 was filed on 09.08.2012, where the turnover was reduced to Rs. 49,811,430/- was not accepted by the Tribunal, as same was revised after service of show-cause notice and also after the returns filed for tax year 2010-2011. However, on rectification application, the above-said finding of the Tribunal was reversed on the ground that show-cause notice was issued under wrong provision of law.

6. The scope of Section 221 of the Ordinance is restricted to rectify the mistake apparent from the record. The expression “mistake apparent from the record” as used in Section 221 of the Ordinance means that “error” or “mistake” is so manifest and clear which if permitted to remain on record may have material effect on the case. However, where defect in order has direct nexus with the question of determination of rights of parties and also effect their substantial rights or cause prejudice to their interest the said defect in order is not a mistake apparent on the record to be rectified under Section 221 of the Ordinance but same can only be challenged before higher forum. In this regard, reliance is also placed on the case of Commissioner of Income Tax/Wealth Tax v. Muhammad Naseem Khan (2013 PTD 2005).

7. Perusal of the original order passed by the Tribunal dated 05.04.2017 shows that the learned Tribunal has assessed the matter in detail and after applying its judicial mind did not agree with the contentions of the assessee and found the respondent to be an assessee

in default. The said order could not be rectified under Section 221 of the Ordinance being an error on face of record but if the respondent was aggrieved due to some legal defect in the order, the same could only be challenged before the next forum. In view of above discussion, the impugned order dated 14.12.2017 is not sustainable being beyond the scope of Section 221 of the Ordinance.

1. For reasons recorded above, this reference application is allowedand questions raised are answered accordingly in favour of the petitioner-department and against the respondent-assessee.

2. Office shall send the copy of this order under the seal of the Court to the learned Tribunal as required under Section 133(5) of the Ordinance.

(Y.A.) Application allowed

PLJ 2020 Lahore 462 [Multan Bench, Multan]

Present: Mahmood Ahmad Bhatti, J.

NASEEM AKHTAR--Petitioner

versus

GHULAM QASIM etc.--Respondents

C.R. No. 637 of 2014, decided on 18.12.2014.

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

----S. 115--Application for grant of succession certificate--Allowed--Determination of shares--Filling of application for recalling of order--Allowed--Modification of order--Appeal--Allowed--Determination findings--Exercising of jurisdiction--Challenge to--Court concerned is not supposed to enter into contentious issues and complex questions of facts and law that fall within domain of a fully-fledged trial--It is too early to give a determinative finding as to whether claim made by petitioner in relation to disputed cheque allegedly made out and issued by Rabnawaz deceased is false or true--It bears repeating that parties to revision petition would have to go whole hog for this purpose--Civil Judge exercised his jurisdiction prudently and in accordance with law by modifying his original order--Impugned order/judgment which is bereft of reasons, is not sustainable--Revision was petition allowed.

[Pp. 465 & 466] A, B, C & D

Mr. Kareem-ud-Din Khilji Advocate for Petitioner.

Mahar Zamir Hussain Sandhal Advocate for Respondents.

Date of hearing: 18.12.2014.

Order

This revision petition is directed against the judgment/order dated 05.05.2014 passed by an Additional District Judge Kabirwala, whereby he reversed and overturned the order dated 07.11.2013 passed by the learned Civil Judge, Kabirwala.

1. Shortly stated, Haji Rabnawaz passed away on 10.06.2013. He was survived by the parties to the revision petition. To be explicit, Mst. Naseem Akhtar, the petitioner is the daughter of the deceased, while Ghulam Qasim and Mst. Nagina Firdous, Respondents Nos.1 and 2 herein are his son and daughter, respectively. Upon his demise, Ghulam Qasim, Respondent No. 1 herein applied for the grant of succession certificate, claiming that the deceased was maintaining two accounts with Dubai Islamic Bank, Kabirwala Branch, District Khanewal. In the aforesaid application, he arrayed Mst. Naseem Akhtar, Mst. Nagina Firdous, Mst. Shamim Akhtar, Manager Dubai Islamic Bank, and public at large as respondents. Having gone through the motions, the learned Civil Judge, Kabirwala granted the succession certificate vide order dated 07.11.2013. However, he was at pains to determine the shares of each of the legal heirs of Haji Rabnawaz. The relevant portion of his order reads as under:

“Shares of Account No. 0121941001

1. Petitioner, Ghulam Qasim (son of deceased Haji Rabnawaz = 2/4) Rs. 252/- of A/C. No. 0121941001 of Dubai Islamic Bank, Kabirwala Branch.

2. Respondent No. 2, Mst. Naseem Akhtar (daughter of deceased Haji Rabnawaz = ½) Rs. 126/- of A/C. No. 0121941001 of Dubai Islamic Bank, Kabirwala Branch.

3. Respondent No. 3, Mst. Nageena Fardose (daughter of deceased Haji Rabnawaz = 1/2) Rs. 126/- of A/C No. 0121941001 of Dubai Islamic Bank, Kabirwala branch.

Share of Account No. 0121941002

1. Petitioner, Ghulam Qasim (son of deceased Haji Rabnawaz =2/4) Rs. 892844/- of A/C.No. 0121941002 of Dubai Islamic Bank, Kabirwala Branch.

2. Respondent No. 2, Naseem Akhtar (daughter of deceased Haji Rabnawaz =1/2) Rs. 446422/- of A/C. No. 0121941002 of Dubai Islamic Bank, Kabirwala Branch.

3. Respondent No. 3, Mst. Nageena Fardose (daughter of deceased Haji Rabnawaz =1/2) Rs. 446422/- of A/C.No. 0121941002 of Dubai Islamic Bank, Kabirwala Branch.

4. As it is, the present petitioner filed an application seeking to recall the aforesaid order dated 07.11.2013 on the grounds that she was not served with any notice regarding the filing of the application for the grant of succession certificate and that Haji Rabnawaz deceased had obtained a loan of Rs. 1200000/-from her and issued a cheque to her bearing No. 0524692 dated 16.06.2013 for a sum of Rs. 1200000/- with the intent to liquidate his liability. Allegedly, this cheque was of. Account No. 0121941002 to be drawn on Dubai Islamic Bank, Mauza Malahpur Branch, Khanewal. It goes without saying that notices were issued to the respondents. They prayed for the dismissal of the aforesaid order. However, the learned Civil Judge seized with the application allowed the same, modifying his earlier order dated 07.11.2013. To be exact, in the latter order dated 12.02.2014, he arrived at the following conclusions:

“In the light of above discussion, application for the petitioner to the extent of Account No. 0121941001 of Rs. 505/- is hereby rejected and application to the extent of Account No. 0121941002 of Rs. 1200000/- is hereby accepted. Regarding the remaining amount of Rs. 585689/- petitioner and respondents are entitled to the remaining amount according to their shares.”

1. Feeling aggrieved by the aforesaid order dated 12.02.2014, the respondents preferred an appeal before the learned District Judge, Khanewal. Ultimately, the appeal came on the file of an Additional District Judge, Kabirwala, who allowed the same vide judgment/order dated 05.05.2014. Dissatisfied as the petitioner is with the aforesaid order, she has filed this revision petition.

2. In support of the petition, learned counsel for the petitioner submits that apart from filing an application seeking to recall/modify the order granting succession certificate, the petitioner has also filed a civil suit for declaration titled “Mst. Naseem Akhtar and another v. General Manager, Dubai Islamic Bank and two others”, in which she reiterated the facts. Her suit is pending adjudication before a learned Civil Judge, Multan. It is stressed by him that if the impugned order dated 05.05.2014 passed by the learned appellate Court was not set aside and the respondents succeeded in withdrawing the amount of Rs. 1200000/- from the account in question maintained by Haji Rabnawaz deceased, the suit of the petitioner would be rendered infructuous. Lastly, it has been argued that the proceedings under the Successions Act, 1925 are summary in nature, and in those proceedings, other disputes relating to the legacy of the deceased can not be determined. Therefore, in order to keep the balance, it would be expedient and in order to restore the order dated 12.02.2014 passed by the learned Civil Judge, Kabirwala by which he had modified his original order dated 07.11.2013. To buttress his arguments, he has placed reliance upon the case law reported as 1987 CLC 262, 2013 CLC 406 , 2002 SCMR 1544 and 1992 CLC 2515.

3. Conversely, learned counsel for the respondents has supported the impugned judgment. He has vehemently argued that the succession certificate was issued to the respondents, subject to their furnishing surety bonds equivalent to the amount in question. Therefore, there was no justification to make a review of the original order passed by the learned Civil Court. It has also been urged by him that looking at the date of the disputed cheque, on the basis whereof the petitioner has filed a suit for declaration and also applied for the cancellation or modification of the succession certificate and the date of the death of Rabnawaz, the fraudulent nature of the claim of the petitioner is too obvious to be ignored. According to him, the learned appellate Court rightly interfered with the modifying order dated 12.02.2014 passed by the learned Civil Judge, Kabirwala. Finally, it has been strenuously argued by him that to restrain the respondents from getting their respective shares from the legacy of the deceased is tantamount to denying any relief to them and virtually depriving them of their sharia shares.

4. I have heard the learned counsel for the parties and gone through the record with their assistance.

8. There can not be two opinions that the proceedings conducted under the Successions Act, 1925 are summary in nature. The Court concerned is not supposed to enter into contentious issues and complex questions of facts and law that fall within the domain of a fully-fledged trial, in which parties are at liberty to adduce evidence to their entire satisfaction. It is too early to give a determinative finding as to whether the claim made by the petitioner in relation to the disputed cheque allegedly made out and issued by Rabnawaz deceased is false or true. It bears repeating that the parties to the revision petition would have to go the whole hog for this purpose. I am of the considered opinion that the learned Civil Judge exercised his jurisdiction prudently and in accordance with law by modifying his original order dated 07.11.2013. If the petitioner succeeds in proving her claim, and meanwhile, the respondents are allowed to withdraw the disputed amount, the petitioner would be left to chase the shadows. For all practical purposes, her suit would be rendered

infrutuous. In the circumstances, the impugned order/judgment dated 05.05.2014, which is bereft of reasons, is not sustainable. Consequently, the order dated 05.05.2014 passed by the appellate Court is hereby set aside, while restoring that of 12.02.2014 passed by the learned Civil Judge, Kabirwala.

1. Given the nature of the controversy between the parties, Senior Civil Jude, Multan shall strive to conclude the trial of the suit titled “Mst. Naseem Akhtar and another v. General Manager Dubai Islamic Bank and two others” within the shortest possible time, preferably within the next nine months or so.

(Y.A.) Revision petition allowed

PLJ 2020 Lahore 466

Present: Mrs. Ayesha A. Malik, J.

KHURAM SALEEM--Petitioner

versus

CHAIRMAN PUNJAB BAR COUNCIL etc.--Respondents

W.P. No. 28255 of 2020, decided on 23.6.2020.

Constitution of Pakistan, 1973--

----Art. 199--Dismissal from service--Application for enrolment as an advocate--Eligibility for grant of enrolment as an advocate--Challenge to--Petitioner admittedly was appointed as Traffic Warden in City Traffic Police, Lahore but was dismissed from service and is now desirous of enrolment as an Advocate and at same time he is also pursuing his appeal against dismissal from service, which violates requirements given in Intimation Form--Therefore, Petitioner is not only desirous of getting his old job of Traffic Warden but also at same time desirous of enrolment as an Advocate--Impugned condition merely sets out the requirement for enrolment as an Advocate and does not infringe on any fundamental right of Petitioner--Petition was dismissed.

[P. 467] A

Petitioner in Person.

Date of hearing: 23.6.2020.

Order

Through this petition, the Petitioner has impugned the condition provided at Sr. No. 3 of Note in the Intimation Form of Punjab Bar Council, Lahore whereby a person is not eligible to apply

for enrolment if he/she is in any government/semi government/private service or business.

2. The Petitioner in person states that this is against his fundamental rights. However, at the very outset, it is noted that no right is absolute and reasonable restrictions may be imposed. The Petitioner admittedly was appointed as Traffic Warden in City Traffic Police, Lahore but was dismissed from service on 23.08.2019 and is now desirous of enrolment as an Advocate and at the same time he is also pursuing his appeal against dismissal from service, which violates the requirements given in the Intimation Form. Therefore, the Petitioner is not only desirous of getting his old job of Traffic Warden but also at the same time desirous of enrolment as an Advocate. The impugned condition merely sets out the requirement for enrolment as an Advocate and does not infringe on any fundamental right of the Petitioner.

1. Under the circumstances, no case for interference is made out. Petition stands dismissed in limine.

(M.M.R.) Petition dismissed

PLJ 2020 Lahore 467 [Multan Bench, Multan]

Present: Ali Baqir Najafi J.

Raja GUL SHAHID AHMAD--Petitioner

versus

ADMINISTRATOR/DIRECTOR GENERAL PHOTA LAHORE etc.--Respondents

W.P. No. 14189 of 2017, decided on 19.12.2017.

Transplantation of Human Organs & Tissues Act, 2010 (VI of 2010)--

----Ss. 10 & 14(iii)(d)--Punjab Transplantation of Human Organs and Tissues Rules, 2012, R. 14(iii)(d)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Conducting of cornea transplant operation--Qualification for registration of transplant surgeon--Illegal transplantation of human organs--Challenge to--It is not denied by Respondents No. 2 and 3 that Respondent No. 3 is not a registered practitioner for cornea transplant as mentioned from his reply--In case of petitioner it appears that, matter was agitated by him but it was not pursued vigorously for reason best known to petitioner. However, a complaint before Punjab Healthcare Commission is pending where authority will be in a better position to appreciate grievance and give finding on allegations levelled by petitioner--Petition was disposed of. [Pp. 469 & 470] A & B

Petition in Person.

Mr. Muhammad Javed Saeed Pirzada, AAG with Imran Ahmed, Director Legal PHOTA.

MaharZameer Hussain Sandhal, Advocate for Respondent No. 3.

Date of hearing: 6.12.2017.

Order

Through this constitutional petition a direction is sought to be issued to the Respondents No. 1 and 2 to decide the complaint of the petitioner with a further direction to Respondent No. 2 to take legal action against Respondent No. 3.

1. Brief facts giving rise to the filing of this constitutional petition are that Respondent No. 3/Dr. Manzoor Hussain Malik conducted a cornea transplant operation of the petitioner on 02.02.2015 but it had failed which fact was not conveyed to the petitioner for more than 1½ years. The petitioner had to go to India where his second transplantation was successfully conducted by Dr. Neera Agarwal, Eye Surgeon at New Delhi India, on 22.7.2016 as a result of which the petitioner’s vision of his left eye was recovered. The petitioner inquired and then came to know that Respondent No. 3 was not an authorized eye surgeon for the purposes of transplantation of eye under the Transplantation of Human Organs and Tissues Act, 2010. Aggrieved of the acts of Respondent No. 3, a complaint was filed before Respondent No. 1 to take legal action against Respondent No. 3 but it has not been decided, hence this writ petition.

2. In the report and parawise comments submitted by Respondents No. 1 and 2/Punjab Human Organs Transplant Authority (PHOTA) constituted to eradicate the menace of illegal transplantation of human organs and tissues by regulating the sphere of transplantation of human organs and tissues for therapeutic purposes. It was also admitted that a complaint was submitted by the petitioner upon which a show-cause notice was sent to Respondent No. 3 and the reply was received where he was only warned by Respondent No. 2 upon the direction of Respondent No. 1 with observation, to get himself registered with PHOTA and that in case any complaint is received against him, strict action was to be taken against him. However, it was also mentioned that a complaint was pending before the Punjab Healthcare Commission. It was also mentioned in paragraph 7 that Respondent No. 3 was not a registered transplant surgeon with PHOTA, therefore, his cancellation of registration is out of question, though he has undertaken in his reply that he had already left transplantation since February 2015 and unless registered with PHOTA he would not practice human organ transplantation.

3. Learned counsel for Respondent No. 3 submits that the petitioner has already approached the Consume Court against the said respondent where the complaint has been dismissed, and that on 14.03.2017 a compromise was also effected between the parties resulting into the withdrawal of another private complaint by paying an amount of Rs. 1,50,000/- to the petitioner. It was also specifically alleged that a complaint before the Punjab Healthcare Commission has been filed on 02.01.2017 under Section 28(b) of the Punjab Healthcare Commission Act, 2010.

4. The stand of Respondent No. 3 is that after the dismissal of the complaint before the Consumer Court and withdrawal of the private complaint from the Court of Magistrate the matter was compromised and according to Respondent No. 3 a complaint before the Punjab Healthcare Commission is also pending.

5. Arguments heard and record perused.

6. Under the Punjab Transplantation of Human Organs and Tissues Rules, 2012 made under Section 9 of the Transplantation of Human Organs and Tissues Act, 2010 qualifications for registration of a transplant surgeon have been prescribed and under Rule 14(iii)(d) it is described that for cornea transplantation, FCPS, M.S. ophthalmology or equivalent qualification with at least one year post FCPS or M.S. with training at a recognized hospital carrying out corneal transplant operations is mandatory. Rule 14(iii)(d) of the Punjab Transplantation of Human Organs and Tissues Rules, 2012 is reproduced as under:--

“(d) cornea transplantation: FCPS, M.S. ophthalmology or equivalent qualification with at least one year post FCPS or M.S. training in a recognized hospital canying out corneal transplant operations.”

It is not denied by Respondents No. 2 and 3 that Respondent No. 3 is not a registered practitioner for cornea transplant as mentioned from his reply. Section 10 of the Transplantation of Human Organs and Tissues Act, 2010 prescribed the punishment for removal of human organs without authority. Under Section 8(2) the Monitoring Authority is responsible to monitor transplantation and enforce the

standards, investigate and hold the inquiry into the allegations of breach of any provision of the Act. This Act was promulgated on 18.3.2010. On 05.07.2014 vide Notification No. S.O. (H&D) 7-7/2012(HOTA) dated 27.06.2014 the Chief Minister, Punjab, has already constituted regional Divisional Level Committees headed by Commissioner of the Division with Regional Police Officer (RPO), Principal of Medical College, Director Health and one expert of the relevant field as its members with the power to examine and investigate the complaint regarding the alleged illegal transplants in their divisions. In the comments certain copies of the FIRs registered under Sections 10/11 of the PHOTA, 2010 have been enclosed.

8. From the perusal of the Transplantation of Human Organs and Tissues Act, 2010 and Punjab Transplantation of Human Organs and Tissues Rules, 2012 and Notification No. S.O. (H&D) 7-7/2012(HOTA) dated 27.06.2014, it is apparent that the Government has taken serious steps in curbing the illegal transplantation of human tissues and organs and such act has also been made an offence under Sections 10/11 of PHOTA, 2010. However, in the case of the petitioner it appears that the matter was agitated by him but it was not pursued vigorously for the reason best known to the petitioner. However, a complaint before the Punjab Healthcare Commission is pending where the authority will be in a better position to appreciate the grievance and give finding on the allegations levelled by the petitioner.

1. In view of the facts given by the respective parties and also the documents brought before this Court showing their conduct, it is appropriate that this writ petition is disposed of with an observation that the complaint before the Punjab Healthcare Commission, if pending, will be attended to and decided in accordance with, law at the earliest.

(M.M.R.) Petition disposed of

PLJ 2020 Lahore 470 [Multan Bench Multan]

Present: Shahid Karim, J.

MAJEED KHAN--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, SAHIWAL DISTRICT SAHIWAL and 5 others--Respondents

W.P. No. 1486 of 2016, decided on 11.3.2019.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Settlement between counsels--Modification in judgments and decrees--To extent mentioned above, Judgments and decrees of Courts below are hereby modified and this petition is disposed of. [P. 471] A

Mr. Mehroze Aziz Khan Niazi, Advocate for Petitioner.

SardarAshfaq Ahmad Khan Balouch, Advocate for Respondent No. 3.

Date of hearing: 11.3.2019.

Order

Parties, according to the learned counsels representing parties, have arrived at a settlement in the following terms:--

i) Respondent No. 3 shall be entitled to Rs. 4000/- per month as maintenance allowance for the period of Iddat only as the divorce has been given on 23.01.2015. That means that the petitioner shall pay an amount of Rs. 16000/- to Respondent No. 3 ibithin a period of two months before the executing Court.

ii) Respondent Nos. 4, 5 and 6 who are minors shall be entitled to the maintenance allowance @ Rs. 4000/- per month each and the rest of the terms of the judgment and decree shall remain the same.

2. To the extent mentioned above, judgments and decrees of the Courts below are hereby modified and this petition is disposed of.

(Y.A.) Petition disposed of

PLJ 2020 Lahore 471

Present: Ch. Muhammad Iqbal, J.

PROVINCE OF PUNJAB through Secretary (Colonies), Board of Revenue, Punjab etc.--Petitioners

versus

MUHAMMAD YAQOOB--Respondent

C.M. No. 3263 of 2019, (Petition under Section 12(2) C.P.C.) in W.P. No. 1049/1991, heard on 11.03.2020.

Constitution of Pakistan, 1973--

----Art. 199--Filling of writ petition--Allowed--Appeal--Partly allowed--Civil appeal before Supreme Court of Pakistan--Allowed--Allotment against RL-II--Exchange of evacuee property with state land--Extension of Lyallpur Town--Exchange was challenged--Proprietary rights--Adjustment of alternate land--Validity of allotment orders--Reports of AC/DDOR--Insertion of fake page in official record--Fraud and misrepresentation--Fraudulent transaction--Principle of laches--Respondent was required to satisfy D.C. Faisalabad about validity/authenticity of his alleged allotment orders and also prove from record final payment of consideration to Settlement Department through deposit receipt, but no such required documents are available on record of writ petition which may elucidate fulfillment of above stipulation--Alleged allotment order was passed in favour of respondent and factum of its non-incorporation came into his knowledge in 1958 but till filing of writ petition he made no endeavor to get allotment incorporated in Revenue Record, whereas as per report A.C/DDOR a page of fake RL-II-123 was subsequently unauthorizedly inserted in official record of Settlement Department, as Official Index Register which is prepared in alphabetical order containing names of allottees, shows that name of respondent (Muhammad Yaqoob) is not available therein, whereas original khata RL.II.123 was confirmed in favour of one Mehar Din s/o Noor regarding land situated in square No. 26 whereas in alleged RL.II. No. 123, respondent claim allotment of land situated in Square No. 35 & 85 which shows that alleged allotment in favour of respondent is a bogus one--As per record/National Identity Card, respondent/writ petitioner (Muhammad Yaqoob) was minor about 5½ years of age at time of creation of Pakistan and was only 10 years of age when alleged allotment order was passed showing him as an A-Class allottee being Government Employee--This is an astonishing fact that how can be a minor boy of 10 years became an government servant, as such, alleged allotment was procured through practicing fraud and misrepresentation of real facts--Respondent on basis of fake and forged document of Khata RL.II.123 obtained order from this Court by committing fraud and misrepresentation of true facts--It is well settled law that fraud vitiates most solemn proceedings and any edifice so raised on basis of such fraudulent transaction stood automatically dismantled and any ill-gotten gain achieved by committing fraud cannot be validated under any laws--Now adverting to Main Writ Petition, as all material documents and relevant record was produced by petitioner before Hon’ble Supreme Court of Pakistan in C.M.No. 151 of 2003 and in Crl.Org.No. 53-W of 2002 and same is available with this Court, perusal whereof shows existence of brazen fraud--It is settled law that Court is well within competence to decide matter on basis of material placed before it--It is elaborately discussed in preceding paragraphs of instant judgment that a manifest fraud has been committed in obtaining basic allotment order and when foundational order of allotment was obtained through manipulation, malpractice, fraud and misrepresentation, which is patently illegal and void, then subsequent series of orders propounded whereof have no legal sanctity which are considered non-existent and stood automatically crumble down, as such, further proceedings in Writ Petition is useless and amount to abuse of process of law and this Court is well within jurisdiction to set aside basic order as well--If in proceedings of application under Section 12(2) CPC it evinces that main plaint is barred by law and does not disclose any cause of action Court is competent to reject plaint and dismiss suit--Furthermore, respondent asserted in writ petition that allotment was made in his favour in year 1953 whereas he filed Writ Petition for implementation of said order in year 1991 i.e. after lapse of about 38 years rather he remained mum for a period of four decades and did not agitate matter before competent forum, as such, principle of laches is also fully applicable upon this case--Petition was dismissed.

[Pp. 478, 481, 482, 485, 486, 487 & 488] A, B, C, D, E, F & G

PLD 2010 SC 993; PLD 1973 SC 236; PLD 2015 SC 69; 2015 SCMR 1708; 2012 SCMR 280 ref.

Mr. Waseem Iqbal Butt, Assistant Advocate General for Petitioner.

Nemo for Respondents.

Date of hearing: 11.03.2020.

Judgment

Brief facts of the case are that the respondent Muhammad Yaqoob filed Writ Petition No. 1049/1991 contending therein that land measuring 87 Kanal 03 Marla bearing Square No. 35 Kila Nos. 1, 2, 3, 8, 9, 10 & Square No. 85 Kila No. 21, 22, 23, 24/1 situated in Chak No. 220- R.B Tehsil and District Faisalabad was allotted to him against RL.II. No. 123 in the year 1953. The Government of Pakistan, Ministry of Rehabilitation through a notification dated 03.1.1958 exchanged the evacuee land measuring 5235 Acres with state land measuring 7150 Acres in various parts of Lyallpur District for extension of Layallpur Town (Faisalabad). A number of allottees who have been issued PTDs challenged the said exchange and they were given proprietary rights of the said land by the Colonies Department. Muhammad Yaqoob/writ petitioner/respondent filed W. P. No. 1049/ 1991 with the prayer that he is entitled to get the proprietary rights of the aforementioned land under notification dated 12.06.1988 and he also filed another Writ Petition No. 3221/1995 with the prayer that against his remaining 916 PIUs the land in his possession be confirmed in his favour. Both these writ petitions were allowed by this Court vide order dated 03.05.1995 and direction was passed to issue him the proprietary rights. Against the said judgment, Civil Appeal Nos. 2233 & 2234 of 1998 were filed by the Province of the Punjab. The Civil Appeal No. 2234 of 1998 filed against the order dated 03.05.1995 passed in Writ Petition No. 1049/1991 was partly allowed vide order dated 10.09.2001 and direction was passed for the adjustment of alternate land in the name of Muhammad Yaqoob/ respondent (writ petitioner) in accordance with law within two months, whereas the Civil Appeal No. 2233/1998 against the same order dated 03.05.1995 passed in Writ Petition No. 3221/1995 filed by the Province of Punjab was allowed by the Hon’ble Supreme Court of Pakistan through its judgment reported as Government of Punjab, Colonies Department, Lahore and others vs. Muhammad Yaqoob (PLD 2002 SC 5).

1. The Province of the Punjab filed petition under Section 12(2) C.P.C. before the Hon’ble Supreme Court of Pakistan on the ground that the initial allotment in favour of the writ petitioner is illegal/void as the same was obtained through fraud, misrepresentation and interpolation in the Settlement Record, challenging the order dated 10.09.2001 passed in Civil Appeal No. 2234 of 1998 wherein the Hon’ble Supreme Court of Pakistan, on 12.01.2015, passed following order:

“We note that the issue in Criminal Original Petition No. 53 of 2002 is regarding non-compliance of the judgment handed down by this Court on 10.09.2001 in Civil Appeals No. 2233 and 2234 of 1998 but through Civil Miscellaneous Application No. 4204 of 2004 the Government of the Punjab has filed an application under Section 2(2), CPC seeking recalling of the said judgment dated 10.09.2001. We have been informed that on 19.04.2004 the Deputy District Officer (Revenue), Faisalabad had concluded after an inquiry that the allotment made in favour of the present petition namely Muhammad Yaqoob was bogus and, thus, compliance of the above mentioned judgment passed by this Court on 10.09.2001 may perpetuate a fraud. The learned counsel for the petitioner has vehemently maintained that an application under Section 12(2), CPC is not competent or maintainable before this Court. In view of the above mentioned peculiarity of this case we convert the said application filed by the Government of the Punjab under Section 12(2), CPC into a review petition against the judgment dated 10.09.2001 rendered by this Court in Civil Appeals No. 2233 and 2234 of 1998. Let a notice be issued to all the parties in connection with the said review petition. Adjourned for a period of two months.”

On 19.01.2017, regarding the matter in issue, the Hon’ble Supreme Court of Pakistan passed following order:

“The request of Malik Muhammad Qayyum, learned Sr. ASC for time to file additional documents is allowed. The parties must also come prepared to argue whether the original application of the respondent moved under Section 12(2) of the CPC but subsequently converted in a review petition vide order dated 12.1.2015 can be revived as an application under the provisions of Section 12(2) ibid in light of the law laid down in the judgments reported as Sahabzadi Maharunisa and another vs. Mst. Ghulam Sughran and another (PLD 2016 SC 358) and Nasrullah Khan and others vs. Mukhtar-ul-Hassan and others (PLD 2013 SC 478). Re-list.”

On 12.04.2018, the Hon’ble Apex Court held as under:

“C.R.P.No. 308/2004: Having heard the learned counsel for the parties, we suo motu withdraw our earlier order dated 12.1.2015. This petition shall be treated as under Section 12(2) of the Code of Civil Procedure, 1908 as per the law laid down by the judgment reported as Sahabzadi Maharunisa and another vs. Mst. Ghulam Sughran and another (PLD 2016 SC 358). Re-list.”

and on 24.10.2018, the Hon’ble Apex Court remitted the matter to this Court for adjudication, as under:

“Both the learned counsel for parties are that as per the law laid down in the case of Sahabzadi Maharunisa and another vs. Mst. Ghulam Sughran and another (PLD 2016 SC 358) the application under Section 12(2) of the Code of Civil Procedure, 1908 should have been filed before the learned High Court. In these circumstances, the said application along with the reply filed by the respondent is transmitted to the learned Lahore High Court to decide the application in accordance with law. In case any factual controversies are involved in the matter, the Court should resolve the same framing issues and recording evidence, if need be. Disposed of in the aforesaid terms.”

1. Though the respondent/writ petitioner was represented before the Hon’ble Supreme Court of Pakistan and order of remitting the above application under Section 12(2), CPC was passed in his presence even then this Court issued notice on 21.01.2019, 17.04.2019, 12.06.2019 and 20.01.2020 to procure his attendance. In response to notice of this Court dated 13.02.2020, the respondent (Muhammad Yaqoob) appeared in person before this Court on 27.02.2020 and obtained an adjournment in order to engage counsel and on request of respondent, the case was adjourned for 04.03.2020. On 04.03.2020, respondent did not appear and the case was adjourned for 11.03.2020. Today, the respondent has not appeared before this Court despite being well within the knowledge of date of hearing, as such, ex-parte proceedings are hereby initiated against the respondent.

2. I have heard the ex-parte arguments of learned counsel for the applicant and have gone through the record with his able assistance.

3. The Government of Pakistan, Ministry of Rehabilitation vide notification dated 03.01.1958 exchanged Crown Land/State Land with evacuee land required for extension of Lyallpur Town (Faisalabad). The said notification is reproduced as under:--

No. F 21(6)/57-P.II GOVERNMENT OF PAKISTAN MINISTRY OF REHABILITATION

Karachi, the 3rd January, 1958

From

S. Sharaful Haque, Esqr. Officer on Special Duty

To

The Custodian of Evacuee Property, Lahore

Subject: EXCHANGE OF CROWN LAND WITH EVACUEE LAND REQUIRED FOR THE EXTENSION OF LYALLPUR TOWN.

Sir, I am directed to refer to your Letter No. CEF/IX-F-1/3688, dated the 10th December, 1957 on the above subject and to say that the Central Government is pleased to convey its approval under Section 25(2)(a) of the Land Administration of Evacuee Property Act, 1957 to the Custodian of Evacuee Property, Lahore to the exchange of 5235 acres of evacuee land round about Layallpur with state land measuring 7150 acres in various parts of the Layallpur District, required for the allotment of displaced allottees of the evacuee land.

This Ministry’s Letter No. F 21(6)/57-P.II dated the 7th May, 1957, may be treated as cancelled.

Yours obedient servant, Sd/ S. Sharaful Haque OFFICER ON SPECIAL DUTY”

The aforementioned notification of exchange of land was challenged by the evacuee allottees and finally it was validated by the Hon’ble Supreme Court of Pakistan in Ali Muhammad through Legal Heirs and others vs. Chief Settlement Commissioner and others (2001 SCMR 1822). Before the promulgation of the above said notification, some evacuee allottees have already paid all the dues/consideration and Settlement Department had issued permanent transfer deed (PTD) in their favour. They claimed absolute ownership on the basis of such PTDs. The Government of Punjab, Colonies Department, as special hardship case granted proprietary rights to the said persons vide notification dated 12.06.1988. The said notification is reproduced as under:

GOVERNMENT OF THE PUNJAB COLONIES DEPARTMENT

NOTIFICATION

Lahore, dated the 12th June 1988

No. 186-88/1316-CIV WHEREAS certain areas of State land situated in the district of Faisalabad were exchanged with former evacuee land around city of Faisalabad in the interest of urban development and the said exchange was approved by the Government of Pakistan under Section 25(2) of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957), vide Ministry of Rehabilitation Letter No. F.21(6)/57-P.II, dated 3rd January 1958;

AND WHEREAS it subsequently transpired that for some of the area so exchanged, claim holders had been given permanent transfer deeds/allotment orders, as the case may be, against consideration received by the Settlement Department, Government of Pakistan or in satisfaction of verified claims (urban or rural), under the repealed Settlement Laws, prior to 3rd January 1958. It was therefore considered that it would cause hardship to dispossess such persons from the aforesaid land which had since become State land;

NOW, THEREFORE, in exercise of the powers conferred by Section 10 of the Colonization of Government Lands (Punjab) Act, 1912 (V of 1912), the Government of the Punjab in the Colonies Department is pleased to issue the following terms and conditions for the disposal of the above mentioned category of State land:-

(1) Persons holding genuine and valid Permanent Transfer Deeds (in the case of urban area) or in whose case valid allotment orders exist in Register R.L.II (in case of rural area) in respect of the evacuee land (now State land), as mentioned above, and which were finalized prior to 3rd January 1958 may be allowed to acquire proprietary rights for such land, provided:

(a) He/they satisfy the District Collector, Faisalabad about the validity/authenticity of his/their PTDs/allotment orders and that those are still intact:

(b) No litigation is pending in any Court about the land in question;

(c) Final payment of price to the Settlement Department/adjustment of claim is proved from the record;

(d) No other Government dues including Settlement fee etc. are payable by the grantee;

(e) He/they is/are in possession of the land in question.

(2) In case the District Collector is satisfied about the above conditions he will record and issue an order of transfer of such property in the form at Annexure “A”.

ASAD ALI SHAH SECRETARY TO GOVERNMENT OF THE PUNJAB, COLONIES DEPARTMENT.”

(emphasis supplied)

6. As per the available record and pleadings of writ petition, the respondent claims that land measuring 87 Kanal 03 Marla bearing Square No. 35 Kila Nos. 1, 2, 3, 8, 9, 10 & Square No. 85 Kila No. 21, 22, 23, 24/1 situated in Chak No. 220-R.B Tehsil & District Faisalabad was allotted to him against RL.II. No. 123 and his prayer in Writ Petition is that in terms of above Notification dated 12.06.1988 proprietary rights may also be granted to the respondent. As per the terms and conditions of the notification dated 12.06.1988 reproduced above, the respondent was required to satisfy the District Collector, Faisalabad about the validity/authenticity of his alleged allotment orders and also prove from the record the final payment of consideration to the Settlement Department through deposit receipt, but no such required documents are available on the record of the writ petition which may elucidate the fulfillment of the above stipulation. Even in Paragraph No. 1 of the Writ Petition, the respondent/writ petitioner stated that “this land is till today in occupation of the petitioner through tenants.” which means that the respondent neither remained in possession of the disputed land nor has appended any document with the writ petition to show his possession over the disputed land as per covenant 1(e) of the above notification dated 12.06.1988.

7. The next aspect of the matter is that the said alleged allotment in favour of the writ petitioner/respondent was purportedly confirmed on 28.02.1953 on the basis of order dated 29.02.1952. The order dated 29.02.1952 is reproduced as under:

"ملازم سرکار الاٹی Aکلاس بحکم جناب ایڈیشنل کمشنر صاحب لائل پور ہوا ہے۔"

but as per National Identity Card No. 244-42-361288 (date of birth 09.01.1942) as well as computerized National Identity Card No. 33100-5619685-1 (date of birth 03.12.1940) of the writ petitioner, he was aged about only 5-1/2 years (if calculated from his old National Identity Card) at the time of his migration to Pakistan, that when the order of allotment dated 29.03.1952 was passed, he was only aged about 10 years, as such, being below age he could not be a government employee which oust the very foundation of his allotment. Furthermore, as per record, father of the respondent remained alive till 1990 but neither his father nor any of his family member lodged any evacuee claim for allotment of land which factum alone leads to conveniently observe that the claimant was not an evacuee which factum alone dismantle the veracity/sanctity and legality of Khata RL.II. No. 123 on the basis of which respondent got allotment.

Perusal of alleged RL.II.123 shows that following note has been mentioned therein:

"رقبہ کنفرم شدہ کھاتہ ہذا سالم بروئے نوٹیفکیشین F-21مورخہ 03.01.58 توسیع شدہ میں آچکا ہے اس لئے عمل ریکارڈ مال میں نہ ہوا ہے۔"

When the above entry of allotment was incorporated in khata RL.II. in 1953, no reason has been expounded for making of subsequent entry in the Khata RL-II regarding the exchange notification dated 03.01.1958. Even no effort was made by the allottee to get it incorporated in the revenue as well as the Periodical Record (Jamabandi) record and no independent order of allotment was passed by the Settlement Commissioner/competent authority in respect of the allotment of Khata RL.II. No. 123 in favour of the respondent, which proves that the alleged RL.II. No. 123 is an antedated and bogus document.

1. Moreover with regard to the implementation of allotment order the Chief Settlement Commissioner issued Policy Notification No. 1624/78/855/RL dated 19th June, 1978 that any allotment order of evacuee land which has not yet been given effect in the revenue record before coming into force of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 or within one year after passing of said allotment order, whichever is later, such order may be deemed to have been obtained fraudulently by ante-dating the entries in the register R.L.II and same should be considered as cancelled forthwith, after hearing objections, if any, of the so-called allottee. For ready reference, aforesaid notification is reproduced as under:-

No. 1624/78/855/RL Office of the Member Board of Revenue (Settlement & Rehabilitation Wing) Punjab.

Dated Lahore the 19.6.1978.

From

Mian Waheed-ud-Din Rathoro, Secretary (Rural) (Settlement & Rehab. Wing) Board of Revenue Punjab.

To

1. All the wholetime Settlement Commissioners (L) & Addl: Settlement Commissioners (L) Punjab.

2. All the Deputy Commissioners and Assistant Commissioners (ASC) (L) in the Punjab.

Subject: Allotment of resumed land to informers etc. Mr. A.K. Khalid, C.S.C./Member Board of Revenue (S&R) Punjab.

MEMORANDUM:

The Chief Settlement Commissioner/Member, Board of Revenue(S&R) Punjab, has been pleased to decide that any allotment that has not been incorporated in the revenue record before coming into force of the Evacuee Property and Displaced Persons (Repeal) Act, 1975 or within one year of the passing of allotment order, whichever is later, may be deemed to have been obtained fraudulently by anti-dating the entries in the register R.L.II and should be cancelled forthwith, after hearing objections, if any, of the so-called allottee.

1. The Chief Settlement Commissioner/Member Board of Revenue(S&R) Punjab, has further been pleased to order that all cases where land has been resumed on ‘Mukhbari’ applications filed by attorneys of the original claimants should invariably be submitted to the Chief Settlement Commissioner for necessary orders as he thinks necessary with regard to the proposal/allotment of the land so resumed, under Section 14 (1A) of the Displaced Persons (Land Settlement) Act, 1958, read with Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.

2. You are, therefore, requested kindly to ensure strict compliance of orders of Chief Settlement Commissioner/ Member Board of Revenue accordingly, without further delay.

Sd/- SECRETARY RURAL) (SETT: & REHAB. WING) BOARD OF REVENUE PUNJAB.

No. 1624/78/855/RL dated 19th June, 1978.

A copy is forwarded to all the Commissioners/Addl. Commissioners (Settlement Commissioners (Land) Punjab for information and necessary action.

Sd/- SECRETARY RURAL) (SETT: & REHAB. WING) BOARD OF REVENUE PUNJAB.

From the perusal of the aforesaid notifications, it was mandatory for an allottee to get incorporate the allotment in the revenue record within the prescribed period and non-compliance of the above provisions and policy decision badly frustrate the validity and veracity of the alleged allotment.

9. The alleged allotment order was passed in favour of the respondent in 1953 and factum of its non-incorporation came into his knowledge in 1958 but till filing of the writ petition he made no endeavor to get the allotment incorporated in the Revenue Record, whereas as per the report A.C/DDOR a page of fake RL-II-123 was subsequently unauthorizedly inserted in official record of Settlement Department, as the Official Index Register which is prepared in alphabetical order containing the names of the allottees, shows that the name of respondent (Muhammad Yaqoob) is not available therein, whereas the original khata RL.II.123 of Chak No. 220-R.B Tehsil & District Faisalabad was confirmed in favour of one Mehar Din s/o Noor regarding land situated in Square No. 26 whereas in the alleged RL.II. Nos. 123, the respondent claim the allotment of land situated in Square Nos. 35 & 85 which shows that the alleged allotment in favour of the respondent is a bogus one. The report of Deputy District Officer Revenue, Faisalabad in this regard is very important, which is reproduced as under:

From

The Deputy District Officer, Revenue, City, Faisalabad.

To

The District Officer, Revenue, Faisalabad. No. 175 Dated. 19-4-04

Sub:- APPLICATION–ENQUIRY AGAINST CLAIM OF MR. MOHAMMAD YAQOOB.

Sir, It is submitted that in the case of M. Yaqoob Shakir, an enquiry was pending before the undersigned in which certain astonishing facts have been revealed which necessitate that the attention of the Hon’able Court be drawn to the matter.

The applicant’s Inam-Ur-Rahim and Mohammad Iqbal made the following allegations regarding the genuineness of the claim of M. Yaqoob:-

1) i) That as is evident from the NIC of M. Yaqoob that at the time of partition, he was only five years old. Whereas there could be no claim of a minor in the whole settlement process.

ii) Moreover, his father was alive at that time and has died in early 1990s.

iii) None of Yaqoob’s brothers or sisters filed any evacuee claim.

2) That the claimant migrated from Amritsar whereas the entry in RL-II showed that the claimant belonged to Jalandhar.

3) That the entry on the Register RL-II shows that the claimant is a Government servant, which he has never been.

4) That the order of the Additional Commissioner referred to in the RL-II is non-existent

On receiving such a serious complaint, the undersigned summoned the claimant on 25-3-2004 to appear on 26-3-2004 and again on 26-3-2004 for 27-3-2004 (Annex: “A”). Despite service, the claimant M. Yaqoob did not appear. Saikh M. Yousaf, the attorney of the claimant appeared before the undersigned on 30-3-2004 and expressed his concern over the application. The undersigned imposed upon/bound the attorney to either ensure the appearance of the claimant or contest the allegations. The attorney assured the undersigned that he will produce the claimant before the undersigned on 2.4.2004 but did not do so. Again the claimant was summoned for 5.4.2004 but he did not appear. In these circumstances I desired to proceed exparte against M. Yaqoob Shakir, claimant and afforded the applicants an opportunity of proving their case. In the context they produced the following evidence:--

i) They produced the NIC of the claimant, which clearly revealed that he was a child of only five years age when the partition of India took place in 1947 (Annex-B”).

ii) They produced a witness Shabir Ahmad S/O Bashir Ahmad who testified that he belonged to Amritsar and M. Yaqoob was his neighbor.

iii) No clue of his Government service has been traced. It appears highly improbable that he joined Government service at the age of 10/12 years.

iv) The whole record of the case was examined but no clue could be traced regarding the order of the Additional Commissioner. The onus of proof rests upon the claimant to produce his evidence in this regard.

This state of affairs created serious doubts regarding the geniuses of the case/claim of M. Yaqoob. The undersigned in order to probe further in the matters, arranged to examine the register RL-II that is kept under double lock. Careful examination of the register RL-II and the Khata pertaining to the claimant of this case clearly showed that it was a case of forgery and fraud and the claimant is liable to be proceeded against and criminal action should be taken against him. Following, among others, were the points noticed during the examination of Register RL-II:--

i) The page pertaining to Khata No. 123 (relating to M. Yaqoob) appears to have been inserted and pasted in RL-II apparently by removing the original leaf. Visual examination of RL-II will enlighten the Honourable judges to reach correct conclusion.

ii) Index of the register is maintained in alphabetical order of names. Thorough examination of the index revealed that the name of M. Yaqoob is nonexistent in the said index (Annex “C”).

iii) In the index Khata numbers are listed corresponding to Sq No. Khata No. 123 relates to Sq No. 26, whereas the claimant had prepared his document as Khata Nos. 123 with Sq Nos. 35 & 85. It appeared that the original page pertaining to Sq No. 26, Khata No. 123 with had been replaced with a new one favoring M. Yaqoob (Annex: “D”).

iv) The officer signing the proposal of allotment used to be the rank of a Naib Tehsildar. The officer signing the proposal of Khata No. 123 on 29-5-1952 has signed most of the other Khatas as confirmation authority (ARC) e.g Khata 20/112, 279 etc. it shows that while tempering with the record and while fabricating the document, the party neglected the rank of the officer and just copied signatures from other Khatas of the RL-II register. Thus the signatures of ARC have been copied as proposer (Naib Tehsildar) (Annex: “E,F,G”).

v) The signature of confirmation authority on Khata No. 123 are clearly different from other signatures of the same officer on different Khatas and on the same day i.e 28-2-53 e.g Khata No. 353,372,376 etc. (“H,I,J”).

vi) ARC while confirming land on different stages wrote the confirmation order in his own hand writings, but not in this case.

vii) There is an entry of 1958 by the Patwari that the claim cannot be incorporated in the revenue record owing to the exchange of 3-1-58. There was no such practice to enter such a note on RL-II. There is no mention of the exchange and there is no such statement on any Khata of any other RL-II register. This was probably done in apprehension of the objection regarding delay of 38 years when the party entered into litigation in 1991.

viii) In the volume of RL-II containing Khata No. 123, no entry of 1953 exists, which shows that the Khata is not of the same period and is a forged one.

ix) Patwari’s entries on Khata No. 123 do not indicate any date.

x) The whole revenue record of the area has no mention of the claimant as occupant of the land. This issue also needs consideration by the Hon’ble Court

In the light of the aforementioned facts, the undersigned is of the view that this case is the act of forgery and should be proceeded on criminal as well as civil side.

These facts have never been high lighted, as the case has never been scrutinized. During the litigation, revenue officers have raised objection regarding genuineness of the claim but without giving any grounds and have only demanded that the case be sent for scrutiny under 12-6-88 Notification, which excluded certain lands from exchange of 3.1.1958. These facts need to be brought to the kind notice of the Hon’ble Supreme Court of Pakistan in order to avoid failure of justice.

Deputy District Officer, Revenue, City, Faisalabad.

(emphasis supplied)

In this case while filing application under Section 12(2), CPC the petitioner based on a detailed inquiry conducted by the Deputy District Officer, Revenue concerned, who submitted report, which has been reproduced in para 9 . The petitioner gave full particulars of fraud and misrepresentation as prescribed in the judgment reported as Dadabhoy Cement Industries Ltd. and 6 others vs. National Development Finance Corporation Karachi (PLD 2002 SC 500).

10. As per record/National Identity Card, the respondent/writ petitioner (Muhammad Yaqoob) was minor about 5½ years of age at the time of creation of Pakistan and was only 10 years of age when the alleged allotment order was passed showing him as an A-Class allottee being Government Employee. This is an astonishing fact that how can be a minor boy of 10 years became an government servant, as such, the alleged allotment was procured through practicing fraud and misrepresentation of the real facts. The respondent on the basis of fake and forged document of Khata RL.II.123 obtained the order from this Court by committing fraud and misrepresentation of the true facts. It is well settled law that fraud vitiates the most solemn proceedings and any edifice so raised on the basis of such fraudulent transaction stood automatically dismantled and any ill-gotten gain achieved by committing fraud cannot be validated under any laws. Reliance in this regard is placed on Muhammad Attique v. Jami Limited and others (PLD 2010 SC 993), Khursheed Begum and others v. Inam-ur-Rehman Khan and others (PLD 2009 Lahore 552), Nawab Syed Raunaq Ali etc. vs. Chief Settlement Commissioner and others (PLD 1973 SC 236), The Chief Settlement Commissioner, Lahore vs. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) and Lahore Development Authority vs. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097). Moreover in the judgment reported as Lal Din and another vs. Muhammad Ibrahim (1993 SCMR 710), the Hon’ble Apex Court has held that fraud vitiates the most solemn proceedings and no party should be allowed to take advantage of his own fraud.

As discussed above the order dated 03.05.1991 passed in W.P. No. 1049/1991 was obtained by practicing fraud and misrepresentation of the true facts, as such, the same is hereby reversed and application under Section 12(2), C.P.C. is hereby allowed.

11. Now adverting to Main Writ Petition, as all the material documents and relevant record was produced by the petitioner before the Hon’ble Supreme Court of Pakistan in C.M.No. 151 of 2003 and in Crl.Org.No. 53-W of 2002 and same is available with this Court, perusal whereof shows the existence of brazen fraud. It is settled law that the Court is well within competence to decide the matter on the basis of material placed before it. Reliance is placed on Muhammad Akram Malik vs. Dr.Ghulam Rabbani (PLD 2006 SC 773). So far as the impugned order of allotment dated 29.02.1952 as well as confirmation of the said allotment order dated 28.05.1953 are concerned, suffice it to say that it is elaborately discussed in the preceding paragraphs of instant judgment that a manifest fraud has been committed in obtaining the basic allotment order and when the foundational order of allotment was obtained through manipulation, malpractice, fraud and misrepresentation, which is patently illegal and void, then the subsequent series of orders propounded whereof have no legal sanctity which are considered non-existent and stood automatically crumble down, as such, further proceedings in Writ Petition is useless and amount to the abuse of process of law and this Court is well within jurisdiction to set aside the basic order as well. Reliance in this regard is placed on Subhan ud Din and others vs. Pir Ghulam (PLD 2015 SC 69), Rehmatullah and others vs. Saleh Khan and others (2007 SCMR 729) and Muhammad Aslam and others vs. Mst. Kundan Mai and others (2004 SCMR 843). Further under Article 199 of the Constitution of Islamic Republic of Pakistan, this Court may decline to intervene or exercise its discretionary and equitable jurisdiction where grant of relief would amount to retention of ill-gotten gains and is competent to pass such order as may be necessary for the ends of justice. Reliance is placed on Muhammad Sharif through Legal Heirs and 4 others vs. Sultan Hamayun and others (2003 SCMR 1221).

12. Moreover if in the proceedings of application under Section 12(2), CPC it evinces that the main plaint is barred by law and does not disclose any cause of action the Court is competent to reject the plaint and dismiss the suit. Reliance is place on Haji Farman Ullah v. Latif-ur-Rehman (2015 SCMR 1708) wherein it has been held that if a plaint does not disclose cause of action or is barred under the law, then while deciding the petition under Section 12(2), C.P.C., the plaint can also be rejected or even suit can be dismissed for want of jurisdiction. In another case titled as S.M. Shafi Ahmad Zaidi through Legal Heirs vs. Malik Hassan Ali Khan (Moin) through Legal Heirs (2002 SCMR 338), the Hon’ble Supreme Court of Pakistan has observed that incompetent suit shall be buried at its inception for the saved with the time and unnecessary expenses and the Courts get more time to devote it for the genuine causes and held as under:

“17. Provisional transfer order does not, ipso facto, confer absolute title over the property. Admittedly, this case is not governed by Section 9 of the Specific Relief Act. Without clear title the suit for possession could not be filed. The Government gave the land to the Society and the latter surrendered it back to the former. The predecessor-in-interest of the petitioners had no independent right. His right, if any, was through the Society, and it ceased to exist before it became perfect and enforceable in law. It is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the litigating parties and the judicial institution itself. The parties are saved with the time and unnecessary expenses and the Courts get more time to devote it for the genuine causes. The findings of the learned Single Judge and of Division Bench are based upon material available on record and no legal infirmity has been pointed out. Under the circumstances, the plaint was rightly rejected.”

(emphasis supplied)

In another case titled as Abdul Rasheed vs. Ali Bux through L.Rs & others (2016 CLC 1824) wherein it is held as under:

“9. It is well settled that Courts should look attentively to plaints at initial stage to find whether they attract application of Rule 11 of Order VII of CPC, if facts of the case justify application of Rule 11 of Order VII of CPC, it must be applied for rejection of the plaints, irrespective of fact whether it is stage of disposal of application for temporary injunction and it is somewhat earlier stage. It is also well settled that plaint can be rejected if it does not disclose cause of action or the same is barred by any law as enumerated in clauses (a) to (d) of Rule 11 of Order VII, CPC. If from the face of record any infirmity enumerated in clauses (a) to (d) of Rule 11 of Order VII, CPC, then the Court shall order for rejection of the plaint as the fruitless litigation requires to be buried at its inception, to avoid wastage of time of Courts and unnecessary expenses and wastage of time of the litigants as well.”

(emphasis supplied)

13. Furthermore, the respondent asserted in the writ petition that the allotment was made in his favour in the year 1953 whereas he filed Writ Petition for implementation of said order in the year 1991 i.e. after lapse of about 38 years rather he remained mum for a period of four decades and did not agitate the matter before competent forum, as such, principle of laches is also fully applicable upon this case. Reliance is placed on the cases titled of State Bank of Pakistan through Governor & Another vs. Imtiaz Ali Khan & others (2012 SCMR 280), Messrs Blue Star Spinning Mills Ltd. vs. Collector of Sales Tax & others (2013 SCMR 587), Ghulam Hussain Ramzan Ali vs. Collector of Customs (Preventive), Karachi (2014 SCMR 1594) and Iqbal Ahmad & others vs. Government of Sindh through Secretary & others (PLD 2007 Karachi 353).

1. For what has been discussed above, Writ Petition No. 1049/1991 filed by the respondent is hereby dismissed.

(Y.A.) Petition dismissed

PLJ 2020 Lahore 488 [Multan Bench, Multan]

Present: Muhammad Sajid Mehmood Sethi, J.

Raja GUL SHAHID AHMAD--Petitioner

versus

ADMINISTRATOR/DIRECTOR GENERAL, PHOTA and 3 others--Respondents

W.P. No. 8894 of 2018, decided on 19.2.2019.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Human Organ and Tissue Act, 2012, S. 10--Constitutional petition--Filling of complaint--Rejected--Issuance of warning letter--Opportunity of hearing--Non-speaking order-- Direction to--Respondent No. 3 has been warned and strict surveillance has been initiated against him--Material aspects of matter have not been considered by Respondent No. 1 while passing impugned order, thus, same is absolutely non-speaking--Matter is remitted to Respondent No. 1, with a direction to decide same afresh, after affording reasonable opportunity of hearing to petitioner and all concerned, strictly in accordance with law as well as provisions of Section 10 of Act of 2012, through a speaking order--Petition was allowed. [P. 491] A & C

2011 SCMR 1.

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

----S. 24-A, Mandate of Law--Public functionaries--Determination of rights--It is mandate of law that public functionaries, while determining rights of parties, must dilate upon all aspects of matters presented before them and under Section 24-A of General Clauses Act, 1897, executive authorities are bound to decide matters after application of mind, must assign cogent reasons and pass speaking orders. [P. 491] B

Ref. 2010 SCMR 1475, 2010 SCMR 1778, 2011 SCMR 1.

Malik Muhammad Usman Bhatti, Advocate for Petitioner.

Mr. Aziz-ur-Rehman Khan, A.A.G. Director Legal for State.

M/s. Muhammad Suleman Bhatti and Mehr Zameer Hussain Sandhal, Advocates for Respondent No. 3.

Date of hearing: 19.2.2019.

Order

Through instant petition, petitioner has assailed order dated 27.03.2018, passed by Respondent No. 1/Administrator/Director General, Punjab Human Organ Transplantation Authority (“PHOTA”), Lahore, whereby petitioner’s complaint against Respondent No. 3 regarding illegal corneal transplantation was rejected, with the following prayer:

“With the foregoing submission, it is ardently prayed that writ petition may very graciously be accepted and Warning Letter to Respondent No. 3 dated 02.10.2017 and impugned order dated 27.03.2018, issued by the Respondent No. 1, may very kindly be set aside being illegal and unlawful, without any jurisdiction as well as against the norms of justice.

It is also prayed that the Respondent No. 2 may very kindly be directed to decide the matter strictly in accordance with law as early as possible.”

2. Learned counsel for petitioner submits that impugned order is absolutely non-speaking inasmuch as it does not address the core issue as to whether provisions of Section 10 of the Punjab Transplantation of Human Organs and Tissues (Amendment) Act, 2012 (“the Act of 2012”) are attracted in the case of petitioner or not. He further submits that as per Section 8(2)(b) of the Act of 2012, the only authority to investigate the issue involved in this case is Monitoring Authority rather than Respondent No. 1/Administrator / Director General, PHOTA, Lahore. In the end, he submits that impugned order is not sustainable in the eye of law.

1. On the other hand, learned Law Officer, duly assisted by learned counsel for Respondent No. 3, defends the impugned order and submits that petitioner has failed to point out any illegality and legal infirmity in the impugned order, thus, same is liable to be upheld.

2. Arguments heard. Available record perused.

5. In order to better appreciate the respective contentions of learned counsel for the parties, relevant portion of impugned order dated 27.03.2018, passed by Respondent No. 1, is reproduced hereunder:

“Section 10 of the Punjab Human Organ and Tissue Act does not attract in the instant matter, as there was no removal of cornea by the surgeon, Moreover, corneal transplantation is deceased organ donation which is being imported from different countries of the world especially from Sri Lanka. Although, complainant suffered a lot & his grievances should be readdressed by Punjab Health Care Commission as the matter deals with quality health care which pertains to the Punjab Health Care Commission (PHCC) and instant matter is also pending before it. Moreover, the respondent has been warned and strict surveillance has been initiated through all possible means against him regarding any illegal corneal transplantation in future.”

6. The above reproduced part of impugned order shows that it does not contain any valid lawful reasons for arriving at the conclusion that the provisions of Section 10 of the Act of 2012 are not attracted in the present case. Even otherwise Respondent No. 1 might have exonerated Respondent No. 3 if the above-referred provisions were not attracted or referred the matter to the prosecution. However, conversely, Respondent No. 3 has been warned and strict surveillance has been initiated against him. The material aspects of the matter have not been considered by Respondent No. 1 while passing impugned order, thus, same is absolutely non-speaking.

7. It is the mandate of law that public functionaries, while determining rights of the parties, must dilate upon all aspects of the matters presented before them and under Section 24-A of the General Clauses Act, 1897, executive authorities are bound to decide the matters after application of mind, must assign cogent reasons and pass speaking orders. Reference, in this regard, is made to Messrs United Woollen Mills Ltd. Workers’ Union v. Messrs United Woollen Mills Ltd. (2010 SCMR 1475) Fasih-ud-Din Khan and others v. Government of Punjab and others (2010 SCMR 1778) and Government of Pakistan through Director-General, (Muhammad Sajid Mehmood Sethi) Judge Ministry of Interior, Islamabad and others v. Farheen Rashid (2011 SCMR 1).

8. In view of the above, instant petition is allowed in the terms that impugned order dated 27.03.2018, passed by Respondent No. 1, is set aside being illegal and without lawful authority Consequently, the matter is remitted to Respondent No. 1, with a direction to decide the same afresh, after affording reasonable opportunity of hearing to petitioner and all concerned, strictly in accordance with law as well as the provisions of Section 10 of the Act of 2012, through a speaking order, preferably within a period of thirty days from the date of receipt of certified copy of this order. Compliance report shall be furnished to this Court through Deputy Registrar (Judicial).

(Y.A.) Petition allowed

PLJ 2020 Lahore 492[Multan Bench, Multan]

Present:Jawad Hassan, J.

MUHAMMAD TAHIR JAMAL, A.S.C.--Petitioner

versus

GOVERNMENT OF PUNJAB through Secretary Comm. Islamabad and others--Respondents

W.P. No. 7634 of 2019, decided on 12.2.2020.

Constitution of Pakistan, 1973--

----Arts. 9, 14, 15, 20, 26, 38 & 199--Constitutional petition--Public interest litigation--Enforcement of fundamental rights--Violation of commitment--Denial of amenities--Advertisement for award of contract operation & management service areas--Process of evaluation--Doctrine of continuing mandamus--Lack of basic facilities at service areas--Violation of constitution--Right to freedom of movement--Objectives of CPEC authority--Infringement of fundamental rights--Assurance to Court--Right to public entertainment--Implementation of directions of Court--Pendency of petition--Motorway is controlled by NHA by restricting it to certain points then it is incumbent upon all authorities involved including NHA as well as local district administration to provide all basic facilities and amenities at Service Areas of Motorway--It has been pointed out to Court that Service Areas at M-3 are barren and no significant plantation is made thereon--Respondents including National Highway Authority, DCOs of all district administrations are directed to immediately take measures to carry out plantation on Service Areas--They are further directed to submit report of compliance in this regard within one month from date of order--This petition pertains to interests of public regarding which it is not appropriate to pass a final order with definite direction and dispose of matter rather a gradual oversight of Court is required to check progress and implementation of directions passed by Court from time to time within mandate of doctrine of Continuing Mandamus--Petition will therefore remain pending under doctrine of continuing mandamus in order to make sure that undertakings/assurances given before this Court by Respondents are materialized and directions given by Court are complied with in letter and spirit without any fail--This case will be fixed on every alternate Thursday till directions are complied with--Directions are given: i) All government functionaries, present in Court, will strictly adhere to undertakings/assurance given in this Court regarding completion of construction work of Service Areas within deadline/timeframe, ii) A weekly progress report shall be submitted to this Court with complete detail of work done, work which is still required to be done and any impediment or obstruction which hindered progress and completion of work--Report regarding plantation of trees at Service Areas will also be submitted by Respondents within one month from this order specifying measures taken by them respectively to comply with direction of Court since this is beginning of spring, iii) In case of any deficiency/dispute regarding progress being made in matter, representative of all departments concerned, including government functionaries, who appear in Court today, will properly negotiate/communicate with each other and make out all efforts for amicable resolution of issue--They may also establish a contact with learned Law Officers who will render proper assistance to them and play their pivotal role in overall expediting matter which will be appreciated by Court--They may also approach Court for guidance, if feels necessary, iv) All directions issued through this order and contained in previous order(s) will be followed in letter and spirit, disobedience of which would tantamount to initiating contempt proceedings against delinquents under Article 204 of Constitution, v) NHA is directed to establish Emergency Response Centres at suitable places i.e. rest areas, beside motorway equipped with various facilities including doctors, paramedics and ambulances for provision of timely aid and care in case of emergency.

[Pp. 503, 504, 505 & 506] A, B, C, D, E, F & G

PLD 2019 Lahore 664, 2019 CLC 744 and AIR 2016 SC 2953 ref.

Mr. Zafar Ullah Khakwani, Advocate Supreme Court for Petitioner.

Mehr Zamir Hussain Sandhal, Deputy Attorney General for Pakistan and Syed Najam-ul-Saqib Mumtaz, Assistant Attorney General along with Muhammad Azam, Director NHA, Headquarter, Islamabad and Muhammad Bilal Hassan, Assistant Director (Rev-Row), NHA, Headquarter, Islamabad and Muhammad Naseem Arif, G.M. (M-3), NHA, Lahore.

Mr. Azhar Saleem Kamlana, Assistant Advocate General, Punjab along with Habib Muhammad Khan and Sana Tauseef.

Malik Muhammad Tariq Rajwana, Advocate for Respondent-NHA.

Ms. Amina Munir, Deputy Commissioner, Toba Tek Singh, Mansoor Ahmad, Deputy Commissioner, Nankana Sahib and Aftab Ahmad ADC (R), on behalf of Deputy Commissioner Faisalabad.

Mr. Muhammad Shafiq, Mr. Hamid-ur-Rehman Nasir and Fakhar Bashir Sial, Research Officers, Lahore High Court, Research Cell, Multan Bench.

Date of hearing: 12.2.2020.

Order

I. BRIEF BACKGROUND

The Petitioner, Muhammad Tahir Jamal who is an advocate filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) as public interest litigation for enforcement of fundament rights with respect to basic amenities to public at large at Service Areas on Lahore-Abdul Hakeem Motorway (the “M-3”) which is in violation of commitment under CPEC. The denial of aforesaid amenities by the Respondents, National Highway Authority (the “NHA”), which function under the National Highway Authority Act, 1991 under the Supervision of the Ministry of Communications, Government of the Pakistan, Islamabad, prompted the Petitioner to file this writ petition in violation of Articles, 9, 14, 15, 20, 38 of the Constitution.

II. PREVIOUS ORDERS OF THE COURT

(i) 23.10.2019

1. The Court vide order dated 23.10.2019 observed that the Respondents although submitted Report and Parawise comments but it were without any commitments, timeframe, progress report and documents. On the said date, the Court enunciated the right to rest and leisure under Article 26 of the Constitution and Article 24 of the Universal Declaration of Human Rights, 1948 (the “UDHR”) of the United Nations which declares that “everyone has the right to rest and leisure”. Muhammad Javed, Deputy Director (Land and Legal), NHA Multan appeared and stated that the Motorway from Abdul Hakeem Interchange to Shamkot Interchange is likely to be functional for public on 27.10.2019 and work to provide Service Area Facilities to public at large is in progress.

(ii) 24.10.2019

1. Pursuant to the order dated 23.10.2019, Naseem Arif, General Manager (Constructions), M-3, NHA Multan appeared and stated that the Motorway from Abdul Hakeem Interchange to Shamkot Interchange will be functional for public on 27.10.2019 (Sunday) which became functional after the official opening. He also submitted that there are three (03) Service Areas on both sides of the Motorway (M-3) (06 in toto) and the NHA had made first advertisement on 13.09.2019 for award of contract Operation and Management Service Areas but due to financial reasons and lack of response from the bidders they again advertised on 03.10.2019 and the bids were opened on 18.10.2019. He added that the process has already been started for evaluation but it will take almost four (04) months for providing basic amenities at all the Service Areas i.e. Emergency Service, Mosque, Rest/Food Area etc. However they assured that in compliance of the order of this Court, they have made temporary arrangements at Tandalianwala Interchange to meet with the aforesaid basic necessities and the same shall be improved for passengers till the final arrangements hence, under the doctrine of continuing mandamus, today this case is fixed in which all the relevant/concerned parties appeared and made following undertakings before the Court.

III. UNDERTAKING BY THE RESPONDENTS

a. Deputy Commissioner, T.T. Singh.

1. Ms. Amina Munir, Deputy Commissioner present in the Court submits that Attock Petroleum Limited (the “APL”) had applied for issuance of NOC on 29.11.2019 and the matter has been forwarded to all the relevant departments of the Federal and the Provisional Governments. In consequence whereof, only five departments have issued the NOCs however, reminders will be issued to remaining departments in order to expedite the matter, which process formally takes ninety days but keeping in view the hardships and inconvenience being faced by the Passengers/Travellers on Lahore Abdul Hakeem Motorway (“the M-3”), she assures the Court that the needful will be done within next thirty days or before.

b. Deputy Commissioner, Nankana Sahib.

1. Mansoor Ahmad, Deputy Commissioner submits that on 21.11.2019, the APL had applied for the NOC. He informs the Court that eleven departments (which include both the Federal and the Provincial Governments) have issued the NOC and only the NOC from the Lahore Development Authority is required.

2. In such panorama, direction is, therefore, issued to the Director General, LDA, Lahore to speed up the matter with regard to issuance of NOC and finalize it within next two (02) weeks positively.

c. Deputy Commissioner, Faisalabad.

1. Aftab Ahmad, ADC (R), Faisalabad has put his appearance on behalf of Deputy Commissioner and states that all necessary NOCs have been issued to the APL however, only one NOC is required from the Environmental Protection Agency (“the EPA”). He next informs that some gas stations and facilities have been provided at the M-3, Tandlianwala Interchange to public-at-large.

2. Keeping in view the situation, the concerned authority of the EPA dealing with the matters of NOC will make sure issuance of mandatory NOC, as per law, to the APL within next fifteen days without fail.

d. National Highway Authority

1. Muhammad Azam, Director, NHA states that pursuant to order of this Court, they have issued acceptance letters to all the Contractors and the APL. He, however, clarifies that after fulfilling the terms and conditions by the Contractors given in acceptance letters, the competent authority will then execute contracts/agreements so that the basic amenities at Service Area including Emergency Service, Masjid, Rest/Food Area etc. to all the commuters on the M-3 may be provided.

IV. STATEMENTS BY THE CONTRACTORS.

a. Habib Construction Company

1. Faraz Anwar, General Manager appears on behalf of the Company states that as per the acceptance letter dated 03.02.2020 issued by the Competent Authority, they have deposited bank guarantee and with regard to installment plan, they will do so within a period of ten days in order to expedite the process of making service areas operational.

b. Nawaz Construction Company

1. Muhammad Sajjad, General Manager Marketing of the company states that pursuant to the order of this Court, the NHA has issued them letter of acceptance on 06.02.2020 with certain terms and conditions which they will fulfill within ten days and thereafter, the NHA will execute proper agreement/contract. He further states that regarding service area falling within middle of M-3 (Tandlianwala), contract/agreement has already been executed, however, the operation of the restaurants is in pipeline and after completion of the work, they will obtain services from various outlets/restaurants including KFC, Hardee’s Pakistan, McDonald’s and Bismillah Restaurant. He assures the Court that Bismillah Restaurant will be operational for the Passengers/commuters of the M-3 within one week. He further clarifies that Mureedwala services area will take time because the construction work is still in progress.

2. In this scenario, they are directed to expedite the construction work as per requirements of the Operators, within a period of two months.

V. STATEMENT BY REPRESENTATIVE OF THE ATTOCK PETROLEUM LIMITED

1. Zaheer Ahmad Kazmi, representative of the APL, submits that they have approached the concerned Deputy Commissioners for issuance of the NOCs. However, he further clarifies that they will comply with all the requirements/codal formalities once they receive the NOCs from all the Deputy Commissioners and this process will be completed within one week in which all gas stations will be operational.

2. In the attending circumstances, the concerned Deputy Commissioners are directed to expedite the process of issuing of NOC to the APL at the earliest.

VI. OBSERVATION OF THE COURT.

1. This petition was filed by the Petitioner being a citizen of Pakistan to draw the attention of the Court towards lack of basic facilities at Service Areas i.e. rest area, masjid, food facilities etc. for the commuters/passengers on Lahore-Abdul Hakeem Motorway (“the M-3”) which is causing severe adversity and hardship to the public-at-large, and has sought intervention of this Court under Article 199 of the Constitution for issuing necessary directions to the concerned quarters to make sure availability of these basic and necessary facilities to every person/passenger/commuter who travels on the M-3 because failure to provide such basic necessary facilities is not only violative of Article 26 of the Constitution, which deals with the issue of access to place of public entertainment or resort which include place to rest and take leisure and place for food and prayers but also it is clear violation of Articles 9, 14, 15, 20 and 38 of the Constitution which speaks about fundamental rights of the citizens of Pakistan i.e., right to life and liberty (Article 9), right to dignity (Article 14), right to freedom of movement (Article 15), right to food (Article 38), right to water (Article 9) and right to practice and propagate one’s religion (Article 20). Mr. Zafarullah Khan Khakwani, ASC relied on the judgment of the Hon’ble Supreme Court of Pakistan in SUO MOTU CASE No. 13 of 2009 (PLD 2011 SC 2019), wherein it has been held that right to life implies the right to food, water, decent environment, education, medical care and shelter thus fundamental rights cannot be infringed or taken away by the state through any actions as well as inactions.

Right to Movement (Travel) under the Constitution

1. Article 15 of the Constitution provides that every citizen has a fundamental right to freedom of movement throughout Pakistan subject to restrictions imposed by the law. Providing an appropriate safe passage to travel throughout the country is a responsibility shouldered upon the state and the NHA created under the National Highway Authority Act, 1991 which was established for the very purpose of planning, development, operation and maintenance of the National Highways and strategic roads to provide safe, time efficient and better road facilities of international standards to travellers/commuters/passengers so that they can exercise their right of movement in a more better way. Different phases of Motorways are also constructed by the NHA to undertake this very purpose at the level of utmost excellence because the NHA is custodian of the Highway assets of Pakistan’s road network and committed to provide a safe, modern and efficient transportation system.

M-3 under CEPC

1. In order to achieve the infrastructure projects and road networks in Pakistan, various motorways including the M-3 was constructed under the China Pakistan Economic Corridor (the “CPEC”) by the NHA. CPEC is intended to rapidly upgrade Pakistan’s required infrastructure and strengthen its economy by the construction of modern transportation networks, numerous energy projects, and special economic zones. To fulfill the purpose of the CPEC, the CPECA was established under The China Pakistan Economic Corridor Authority Ordinance, 2019 by aiming at accelerating the pace of CPEC-related activities, finding new drives of growth, unlock the potential of the interlinked production network and global value chains through regional and global connectivity. As per project of CPEC, about 1100 kilometers long motorway has to be built between the cities of Karachi and Lahore in which M-3 constructed by NHA is also included which was not functional hence this petition. Under the aims and objectives of the CPEC Authority, the national highways of Pakistan function as the backbone of Pakistan’s transportation system, play an important role in the development of micro and macro economy and also enhance the national integration by increasing the social and economic dependence between the Provinces and neighbour countries. The National Highway Authority Act, 1991 is governing law, which deals with matters related to Highway and motorway and Section 31 of the Act confers powers upon Federal Government to make rules for carrying out purpose of the Act. As per Rule 2 (xiv) of The National Highways and Strategic Roads (Control) Rules, 1998 (as amended in 2002) motorway is defined as:

“Motorway’ means a road especially designed and built for motor vehicles which does not serve the properties bordering on it except at special points and has separate carriageways for the two directions of the traffic and does not cross at level with any road, railway, tramway, cycle track or footpath.”

1. Moreover, motorway is also defined under Section 2(xxxiv) of National Highways Safety Ordinance, 2000 according to which “motorway” means a road especially designed and built for motor vehicles which does not serve the properties bordering on it except that special points and has separate carriageways for the two directions of the traffic and does not cross at level with any road, railway, tramway, cycle track or footpath.

2. Universally the freedom of movement envisages access of every citizen to all the roads constructed for public to travel including motorways subject to condition of toll tax or other taxes imposed by government under the law and any unreasonably protracted obstruction of the road or its prolonged non-functionality on the pretext of a construction work which is taken out in a sluggish manner tantamount to restriction and infringement of fundamental right to movement of commuters/passengers/travellers provided and protected under Article 15 of the Constitution. In this backdrop, on 23.10.2019 assurance from Respondent-NHA was sought by this Court regarding the opening and functioning of Motorway from Abdul Hakeem Interchange to Shamkot Interchange and the same has been complied with as per assurance given to the Court which has been appreciated.

Right to Profess Religion (Prayer Facilities)

1. Article 20 of the Constitution guarantees that every citizen shall have the right to profess, practice and propagate his religion and Preamble of the Constitution states that sovereignty over the entire universe belongs to Al-Mighty Allah alone. Right to practice religion implies that a Muslim citizen has a fundamental right to offer prayer at the time of prayers while he is travelling at M-3 and it is the duty of State to provide appropriate area to offer prayers at Service Area of M-3.

Right to Public Entertainment and Resort

1. Article 26 of the Constitution guarantees that there must be no discrimination against any citizen regardless of race, sex, caste, religion or place of birth to access places of public entertainment or resort. The term ‘Entertainment’ has been elaborated by this Court in case reported as “Parks Pakistan (Pvt.) Ltd v. Director, Excise And Taxation and others” (1994 CLC 1034), relevant portion is reproduced hereunder:

“Entertainment, as per ordinary dictionary means amusement, recreation or pastime. Amusement means anything that diverts the mind and pleases the mind. Recreation has the meaning of refreshment of the strength and spirits after toil and diversion while pas-time connotes to pas-time agreeably and in a pleasant manner. Keeping the ordinary dictionary meaning of the words in view entertainment denotes any amusement, recreation of pas-time which diverts working of mind from ordinary channels to something different in a pleasant and pleasurable manner.” (Emphasis supplied).

1. The term ‘resort’ is defined by Black’s Law Dictionary (11th Edition p. 1568) which reads as follows:

“a place where people go for rest, recreation, or sport, especially on vacation”

1. Article 38(d) of the Constitution also secures the fundamental rights related to basic amenities of life with the following words:

“The State shall provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all citizens.”

Concept and Purpose of Rest Areas in different countries

1. A rest area is a public facility, located next to a large thoroughfare such as a motorway, expressway, or highway, at which drivers and passengers can rest, eat, or refuel without exiting onto secondary roads. Facilities may include park-like areas, fuel stations, public toilets, water fountains, restaurants, and dump and fill stations for caravans.

Establishment of Rest Areas In Different Countries

i. Islamic Countries

In Islamic countries like Malaysia, Indonesia, Iran, Saudi Arabia and Turkey, Muslim travellers have been provided facilities for offering prayers at the distance of after every 90 kilomotres besides highways.

ii. Australia

Rest areas in Australia are a common feature of the road network in rural areas. They are the responsibility of a variety of authorities, such as a state transport or main roads bureau, or a local government’s works department. Facilities and standards vary widely and unpredictably: a well-appointed rest area will have bins to deposit small items of litter, a picnic table with seating, a cold water tap (sometimes fed by a rainwater tank), barbecue fireplace (sometimes gas or electric), toilets, and - less commonly - showers. Other rest areas, especially in more remote locations, may lack some or even all of these facilities.

iii. United Kingdom

The term “rest area” is not generally used in the United Kingdom. The most common terms are motorway service areas or simply motorway services. As with the rest of the world, these are places where drivers can leave a motorway to refuel, rest, or get refreshments. Most service stations accommodate fast food outlets, restaurants, small food outlets such as Marks and Spencer and coffee shops such as Costa Coffee; many service stations also incorporate motels such as Travelodge. Almost all the MSA sites in the UK are owned by the Department for Transport and let on 50-year leases to private operating companies.

Travelers’ rights in Islam

1. Travelers in Islam are known as Musafir or Guest which has been defined in Holy Quran and Sunah as “WAYFARER”. Holy Prophet Muhammad (S.A.W.) reminded us of the high status of one who treats his guest well when he said, “… Let the believer in God and the Day of Judgement honor his guest.” Treating guest or traveller well is the most important beliefs in Islam, belief in God and belief in the Day of Judgement.

a. According to Holy Quran

Surah Al-Bakara (Verse 177)

“The real righteousness is not this that you turn your face towards East or West; yes, the real virtue is this that one has faith in Allah and the Last day and the angels and the Book and the Prophets and gives his dear wealth for love of Allah to kindred and orphans and the needy and the wayfarer and the beggars and for redeeming necks, and establishes prayer and pays poor due (Zakat); and the performer of their promises when make promise and the patients in tribulation and adversity and at time of crusade;-These are they, who proved truth of their talks and they are only God-fearing”

Surah An-Nisa (Verse 36)

“And worship Allah, and do not associate anyone with Him and do good to parents, and to relatives and orphans, and the needy, and the near neighbour and the distant neighbour and the companion of your side and the wayfarer and to your male and female servants. Undoubtedly, Allah loves not the proud, boastful”

Surah Ar-Rum (Verse 38)

“Therefore, give the kinsman his due and the needy and the wayfarer. This is better for those who seek the pleasure of Allah and it is they who became prosperous”

b. According to Hadith

A well-known Hadith with respect to Travellers’ right is quoted here under:

· Abu Hurairah reported the Prophet (SAW) saying: “He, who believes in Allah and the Last Day, let him show the hospitality to this guests …” (Bukhari and Muslim) Hafiz Salahuddin Yusuf in his commentary in Riyad-us-Saliheen states: “To honour a guest means to welcome him cheerfully, entertain him happily, and have full regard of his comfort and rest.”

1. The Hon’ble Supreme Court of Pakistan in case law reported as “Moulvi Iqbal Haider v. Capital Development Authority” (PLD 2006 SC 394) has approved public places of entertainment and resorts as fundamental rights by elaborating Article 26 of the Constitution in the following manner:

“Under Article 26 of the Constitution, it is fundamental right of the citizens to have access to public places of entertainment or resorts”

1. It is therefore ample clear that Motorway is a road with exclusive and limited points to access entry and to exit therefrom by commuters/travellers and besides those given points, a traveller can neither make an entry thereon or exit therefrom, which means that while being on Motorway, a traveller is solely dependent upon the services provided by Motorway Authorities regarding basic necessities and amenities i.e, gasoline station, food, air filling station, rest room, prayer area, emergency medical care center etc., which are necessary for safe and sound travelling and failure on the part of the State and Authorities acting on behalf of the State including local administration to provide the same is not only violative of Article 14, which provides right to dignity as well as pose obstruction in exercise of fundamental right of movement provided and guaranteed under Article 15 of the Constitution and of Article 26 of the Constitution, which provides that every citizen has a fundamental right to access to public place for entertaining and resort. When the entry in and exit from Motorway is controlled by the NHA by restricting it to certain points then it is incumbent upon all the authorities involved including NHA as well as local district administration to provide all basic facilities and amenities at the Service Areas of Motorway as detailed above and any failure or negligence on their part is breach of fundamental duty cast upon them by the Constitution.

Right to Nature and Shed/Shelter of Trees

28. It has been pointed out to the Court that the Service Areas at M-3 are barren and no significant plantation is made thereon. It is pertinent to mention here that earlier this Court in a case reported as “Sheikh Asim Farooq v. Federation of Pakistan and others” (PLD 2019 Lahore 664) has given directions to the Federation and Government of Punjab as well as all other authorities and departments to carry out plantation throughout the province. Relevant portion of directions was:

“In view of the above, this Court allows this writ of mandamus under Article 199(1)(a) (i) of the Constitution and direct the Government Departments performing their functions within jurisdiction of this Court in connection with the affairs of Federation and Province of Punjab and other local authorities under the respective laws, mentioned in this judgment to do anything, they are required by law to do IN ORDER TO SAFELY MANAGE, CONSERVE, SUSTAIN, MAINTAIN, PROTECT AND GROW FORESTS AND PLANT TREES IN URBAN CITIES which are as follows:

(10) The Local Government, PHA, DHA, LDA and all others authorities/societies, Secretry Forest and other relevant authorities are directed to define a mechanism for urban forestation by learning from Urban Plantation Policy.

(12) All the authorities, including DHA, LDA, MDA, FDA and other relevant authorities, are directed to make and adopt comprehensive policies with respect to plantation of trees in urban areas with experience of Urban Plantation Policy and make their own policy under respective laws and immediately start planting of trees with the request to PHA and other departments and maintain the same by imposing fine and penalty to the officers of the area or any citizen.

(13) The school, colleges, higher education institutes, hospitals, parking sites etc. are specifically directed to make policy for planting the trees in open spaces and waiting areas/car parks. (emphasis supplied)

29. The Respondents including National Highway Authority, DCOs of all district administrations are directed to immediately take measures to carry out plantation on the Service Areas in the light of above quoted judgment, which is binding on them under Article 201 of the Constitution. They are further directed to submit report of compliance in this regard within one month from the date of order.

Doctrine of Continuing Mandamus

30. This petition pertains to interests of the public regarding which it is not appropriate to pass a final order with definite direction and dispose of the matter rather a gradual oversight of the Court is required to check the progress and implementation of the directions passed by the Court from time to time within the mandate of doctrine of Continuing Mandamus. Doctrine of Continuing Mandmus was well expounded by this Court in the case of Sheikh Asim Farooq, ibid wherein it was held:

“23. Continuing Mandamus is a writ of mandamus issued to an authority by the High Court under Article 199 of the Constitution in general public interest asking the officer of the authority to perform its task expeditiously for an unstipulated period of time for preventing miscarriage of justice. The Doctrine of continuing mandamus, at times also referred to as structural interdict or structural injunction, in other words, is a relief given by a Court of law through a series of ongoing orders over a long period of time, directing an authority to do its duty or fulfill an obligation in general public interest, as and when a need arises over the duration a case lies with the Court, with the Court choosing not to dispose the case off in finality. This happens in a situation which cannot be remedied instantaneously but requires a solution over a long time, at times going on for years. With this procedural innovation of the writ of mandamus or a mandatory order, the Court monitors compliance of its orders, seeking periodic reports from authorities on the progress in implementing them. Therefore, as it has been observed on 28.01.2019 that orders passed by this Court are to be complied with by different Departments, therefore, following the Doctrine of Continuing Mandamus, this writ petition was kept pending. Reliance is placed on “Mall Road Traders Association v. The Deputy Commissioner, Lahore etc.” (2019 CLC 744)”

1. The Supreme Court of India in a case cited as “Swaraj Abhiyan (IV) v. Union of India” (AIR 2016 SC 2953) also laid down the concept of continuing mandamus.

“31. We are firmly of the view that the principle of continuing mandamus is now an integral part of our constitutional jurisprudence. There are any number of public interest petitions in which this Court has continued to monitor the implementation of its orders and on occasion monitor investigations into alleged offences where there has been some apparent stonewalling by the Government of India. A few years ago, one of us had occasion to advert to the requirement of a continuing mandamus as a part of our jurisprudence, Manohar Lal Sharma v. Union of India, 2014(1) R.C.R.(Criminal) 370 : 2014(1) Recent Apex Judgments (R.A.J.) 90 : (2014) 2 SCC 532. It is not necessary to repeat the views expressed therein.

1. Under these circumstances, we agree with learned counsel for the petitioner that this petition ought not be disposed of but should be kept pending and the possibility of a continuing mandamus being issued ought to be kept open to ensure that the directions that have been given are complied with by the Government of India as well as the State Governments.

(Emphasis supplied)

32. This petition will therefore remain pending under the doctrine of continuing mandamus in order to make sure that the undertakings/assurances given before this Court by the Respondents are materialized and directions given by the Court are complied with in letter and spirit without any fail. This case will be fixed on every alternate Thursday till the directions are complied with.

VII. DIRECTIONS/INSTRUCTIONS OF THE COURT

33. In view of the above backdrop, the following directions are given:-

i) All the government functionaries, present in the Court, will strictly adhere to the undertakings/assurance given in this Court regarding completion of the construction work of Service Areas within the deadline/timeframe.

ii) A weekly progress report shall be submitted to this Court with complete detail of the work done, the work which is still required to be done and any impediment or obstruction which hindered the progress and completion of work. Report regarding plantation of trees at Service Areas will also be submitted by the Respondents within one month from this order specifying measures taken by them respectively to comply with the direction of the Court since this is the beginning of spring.

iii) In case of any deficiency/dispute regarding the progress being made in the matter, the representative of all the departments concerned, including the government functionaries, who appear in the Court today, will properly negotiate/communicate with each other and make out all efforts for amicable resolution of the issue. They may also establish a contact with the learned Law Officers who will render proper assistance to them and play their pivotal role in overall expediting the matter which will be appreciated by the Court. They may also approach the Court for guidance, if feels necessary.

iv) All the directions issued through this order and contained in the previous order(s) will be followed in letter and spirit, disobedience of which would tantamount to initiating contempt proceedings against the delinquents under Article 204 of the Constitution.

v) The NHA is directed to establish Emergency Response Centres at suitable places i.e. rest areas, beside the motorway equipped with various facilities including doctors, paramedics and ambulances for the provision of timely aid and care in case of emergency.

1. Now to come up for further proceedings on 20.02.2020.

(Y.A.) Order accordingly

PLJ 2020 Lahore 507

Present:Jawad Hassan, J.

ARSHAD ALI--Petitioner

versus

WAPDA etc.--Respondents.

W.P. No. 43599 of 2017, heard on 21.8.2020.

Constitution of Pakistan, 1973--

----Art. 199--Time scale upgradation--Quasi-judicial order--Issuance of notification for upgradation--Eligibility for promotion--Right of promotion--Disregarding of promotion policy--Challenge to--As per Notification petitioner is eligible for promotion being serving employee of Respondent-WAPDA--Notification clearly depicts that same is applicable to Officers, who are in service and admittedly petitioner was retired from service and could not be granted TSU only because of non-convening of TSU Board’s meeting--Failure to convene aforesaid TSU Board’s Meeting twice in years from 2013 to 2016 amounts to non-compliance and violation of afore-referred mandatory principle lead to take a penal action--Petitioner had embarked upon a well-founded expectancy of time scale promotion since, on one hand his tenure of service was equated with required overall length of service necessary for becoming eligible to be considered for such promotion and secondly and most importantly when Promotion Policy of Department itself provided that meeting of Board for purpose of time- scale promotion shall be held twice a year--This directive of Policy is clearly reflective of intentions of policy maker that case of an employee, whose right to get time-scale promotion is accrued, must be dealt with immediately and in no case be kept dormant for more than six months--Had it not been intention of policy maker, word ‘shall’ should not have been used, which is a mandatory expression and manifest purpose of rule/policy that it must be acted upon as a general course and depart from that should not be resorted therefrom--Case of Petitioner is a case of hope and legitimate expectation well founded on completion of required overall length of service necessary for time-scale promotion and availability of Promotion Policy of respondent department, wherein it is clearly stated that meeting of Board for purposes of giving time-scale promotion will be held twice a year--Respondents have neither explained/brought on record any plausible reason for non-convening meeting nor have annexed any document to show that Petitioner was not eligible for grant of

TSU--Although promotion is not deemed as a vested right, yet to be considered for promotion is certainly a right which cannot be negated especially when right has already accrued without impediment and only lapse posing hindrance in way of such a right is an inaction on part of department and its non-fulfillment of rules/policy--Act of non-convening of meeting for awarding time-scale promotion to employees including Petitioner, is an in-action and disregard of Promotion Policy on part of Respondent Department and Petitioner cannot be deprived of his right of time-scale promotion due to such a fault rested solely on shoulders of department--It is settled law that where law requires an act to be done in a particular manner, it ought to be done in that manner alone, and such a dictate of law cannot be termed as a technicality--Promotion is generally an advancement in rank, which is granted on basis of acquiring extra-qualifications or enhancement of skills or awarded in lieu of longstanding services of employee as a token of satisfaction and appreciation over services rendered by him-- Concept of Proforma Promotion is to remedy loss sustained by an employee/civil servant on account of denial of promotion upon his legitimate turn due to any reason but not a fault of his own and in cases where a temporary embargo was created against his right for such promotion or a legal restraint was posed against his claim owing to any departmental proceedings inquiry etc. against him and said obstacle is done away with ultimately then in such a situation, his monetary loss and loss of rank is remedied through proforma promotion.

[Pp. 516, 517, 519, 520 & 521] A, B, C, D, E & F

Constitution of Pakistan, 1973--

----Art. 199--Constitution petition--Benefit of time scale promotion--Eligibility criteria--Fundamental right--Promotion policy--Challenge to--No doubt promotion is not vested right of a civil servant but where he is fully qualified for promotion and there is no tangible clog in his service record, he has a right to expect that his case will be considered for promotion in accordance with law, rules, regulations and eligibility criteria / policy formulated for regulating promotion by Government--Any breach or deviation therefrom for mala fide reasons or due to arbitrary act of his superiors or peers or competent authority, is not warranted in law--At this juncture, counsel for Petitioner has referred to an office order issued by Finance Division (Admin & Regulations) Wing of WAPDA; wherein Benefit of Time scale Promotion is given to those employees who were eligible for TSU but were not allowed same due to non-conducting of respective board’s meeting--This very order is held applicable from date of superannuation--In view of position explained above it is to conclude that a civil servant has a fundamental right to be promoted even after his retirement through awarding pro forma promotion provided his right of promotion accrued during his service and his case for promotion could not be considered for promotion for no fault of his own and he is retired on attaining age of superannuation without any shortcoming on his part pertaining to deficiency in length of service or in form of inquiry and departmental action so taken against his right of promotion--Petitioner was otherwise eligible and qualified to be considered for grant of time-scale promotion in year 2014 and he cannot be penalized for departmental lapses and negligence on their part regarding non-convening of Promotion Board meeting till retirement of Petitioner, which was otherwise obligatory upon them--Petitioner cannot be made to suffer on account of inaction, omission or negligence on part of Respondents department in late convening of meeting contrary to directives of Promotion Policy--Impugned order is set-aside and matter is remanded to Respondents to reconsider plea of Petitioner particularly in consideration to above referred office order without being influenced from observation made hereinabove.

[Pp. 522 & 523] G, H, I & J

2020 SCMR 90, 1999 SC 1801, (2008) 5 SCC 416, 1995 SCMR 650 & PLD 2013 SC 255.

Syed Moyazzam Ali Shah, ASC and Tamara Murat Khan Saleem, Advocates for Petitioner.

Mr. Muhammad Saeed Tahir Sulehri, Advocate for Respondent.

Barrister Umair Niazi, Additional Advocate General for Respondent.

Barrister Lamia Niazi and Malik Muhammad Awais Khalid, Advocates/Amicus Curiae for Respondent.

Ms. Sadia Mailk, Assistant Attorney General for Respondent.

Date of hearing: 21.8.2020.

Judgment

The Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) by challenging a quasi-judicial order dated 14.02.2017 passed by the Respondent No. 3/Director General (CM) S&C pursuant to directions issued in W.P.No. 28958 of 2015 dated 09.01.2017. The Petitioner has also sought directions to the Respondents to grant him time scale upgradation from BPS-19 to BPS-20 w.e.f. 21.05.2014 alongwith pensionary benefits.

I. BACKGROUND OF THE CASE

1. Unnecessary details apart, the background of the case is that the Petitioner joined the service of Water & Power Development Authority (WAPDA) as Junior Engineer (Civil) in BPS-17 on 24.12.1983 and consequently he was promoted as Superintendent Engineer in BPS-19 on 21.05.2012. On 15.03.2015, he was retired from service on attaining the age of superannuation. His grievance is that he was not given the benefit of Time Scale Upgradation (TSU) in terms of Office Memorandum dated 05.03.2013 despite fixation of eligibility criteria by the Respondents. During service, he was directed by the Respondents to furnish an undertaking vide letter dated 08.07.2014 for his consideration for grant of TSU however, the same was refused. Upon refusals, he filed Appeal/Representation before the Respondent No. 1/Chairman WAPDA, Lahore on 09.03.2015, which remained pending and on the direction of this Court issued in W.P. No. 17111/2015 the Time Scale Upgradation Board’s meeting was held in June, 2015 and only serving Officers were allowed the TSU as the Petitioner had already been retied on 15.03.2015. The Petitioner filed another appeal to the Respondent No. 1 which too was disposed of on 14.02.2017 and the TSU of the Petitioner was refused. Whereupon, the Petitioner filed an Appeal before the Federal Service Tribunal, same was dismissed being non-maintainable vide order dated 29.05.2017. Hence, this writ Petition.

II. PETITIONER’S ARGUMENTS

1. Syed Moazzam Ali Shah, Advocate inter-alia contended that the Petitioner was entitled to be upgraded within 30 days of the Promotion Board’s meeting which has to be held twice in a year in terms of Notification dated 21.06.2007 however, no meeting was convened till his retirement; that Office Memorandum dated 05.03.2013 clearly speaks about its application to officers who were in service on 15.02.2013 or may have retired thereafter; that the case of the Petitioner for TSU was proceeded in the year 2014 but the Respondent-WAPDA did not convene the TSU Board’s meeting in the year 2014, without any reason, which not only deprived his vested right of TSU but it has also caused him permanent loss of pensionary benefits of higher grade. Learned counsel has relied on “Ch. Azhar Hussain versus Secretary to Government of The Punjab LG&Cd Department, Lahore and 2 others” (2016 PLC (C.S.) 693), “Mrs. Naseem M. Qadri versus Federation of Pakistan and another” (2009 PLC (C.S.) 229), “Abdul Qayyum Mirza and another versus Director-General, Federal Directorate of Education, Islamabad and 5 others” (2008 PLC (C.S.) 173) and “Raja Muhammad Naseem Khan versus Azad Jammu And Kashmir Government through Chief Secretary and 4 others” (2010 PLC (C.S.) 439).

III. RESPONDENTS’ ARGUMENTS

1. On the other hand, learned counsel for the Respondent-WAPDA filed report and parawise comments and vehemently opposed the arguments advanced by the learned counsel for the Petitioner and objected qua the maintainability of this writ Petition on the ground that the TSU has been granted to the eligible officers in lieu of promotion and the basic purpose of this policy is to provide incentive to such officers who cannot be promoted in the next grade due to non-availability of vacancies. He argued that TSU is to be granted from its date of decision of Board and not from any earlier date. He added that when the Petitioner moved Application for his TSU, he was repliedvide letter dated 20.03.2015 by explaining that there was no provision available in relevant Rules for grant of TSU after retirement. He urged that Clause 6 of WAPDA Promotion Policy states that “Selection Board will usually be held twice a year” in April and October and the convener can reschedule the number and frequency of the Board as per requirements and the schedule contains the guidelines chalked out for convenience and can be deviated from it warranted by circumstances with the approval of the Competent Authority. That the TSU is a de-facto promotion at par with regular promotion keeping in view the fact that all the criteria/pre-requisites of promotion are applicable on it and it is not solely a time/service length based incentive which is granted to each and every officer, who fulfills/completes the requisite length of service, therefore, the Petitioner is not entitled for the TSU as matter of right. Learned counsel relied on the judgments cited as “Shafique Ahmad Khan v. NESCOM and others” (PLD 2016 SC 377), “Muhammad Tariq Badr v. National Bank of Pakistan” (2013 SCMR 314), “Muhammad Zaman and others v. Government of Pakistan, etc.” (2017 SCMR 571) and “National Bank of Pakistan v. Iftikhar Rasool Anjum” (PLJ 2017 313 (DB).

IV. MOOT POINTS

1. After hearing the preliminary arguments of learned counsel for Parties on 12.06.2019 following moot points were framed by this Court in order to determine the actual controversy of issue in hand:

2. Whether non-convening mandatory meeting of the Board by the Authority amounts to miscarriage of justice and denial of benefits of Notification?

3. Who was responsible to convene meeting of Time Scale Upgradation Boards and when it was mandatory to hold twice in a year, what was its composition?

4. How many TSU and TSUB have been held from year 2013 to 2016?

5. Pursuant to the order dated 12.06.2019, Barrister Lamia Niazi and Malik Muhammad Awais Khalid, Advocates were appointed as “Amicus Curiae” to assist the Court by examining all the relevant Laws on the aforesaid moot points regarding non-convening of regular Board Meeting by the various authorities and bodies under respective law.

V. ARGUMENTS OF AMICUS CURIAE

1. Barrister Lamia Naizi, learned Amicus Curiae submitted her written brief and emphasized on the word “Shall” used in the Notification dated 11.06.2007 of the Respondent-WAPDA. She states that admittedly two (02) meetings as prescribed and required by Notification have to be held to deal with the promotion cases and it is manifest that this mandatory provision has not been complied with rather violated and flouted by the Respondent-WAPDA. She adds that non-compliance of mandatory provisions under the Companies Ordinance, 1984 held to have penal consequences which may be converted to warning etc. depending on the facts of the case. She relied on the Election Act, 2017 and states that non-compliance under this Act has penal consequences. Lastly Barrister Lamia Naizi states that in services cases where the provision is considered necessary and mandatory then its non-compliance will lead to an action taken to be void. She relied on “Sardarzada Zafar Abbas and others versus Syed Hussain, Murtaza and others” (PLD 2005 Supreme Court 600), “Lt. Col. (Rtd.) Ghazanfar Abbas Shah versus Mehr Khalid Mehmood Sargana and others” (2015 SCMR 1585), “Sh. Riaz-Ul-Haq and another versus Federation Of Pakistan through Ministry of Law and others” (PLD 2013 S.C. 501), “Syed Mahmood Akhtar Naqvi and others versus Federation Of Pakistan and others” (PLD 2013 S.C. 195), “Muhammad Tariq Masood, Ceo Saudi Pak Leasing Company Limited versus Commissioner (Specialized Companies Division) Secp” (2018 CLD 44) (SECP), “National Transmission And Despatch Company Limited versus Corporatization And Compliance Department, Secp” (2018 CLD 197) and “Khalid Mehmood and 4 others versus Messrs Multi Plus Corporation Private Limited and 2 others” (2017 CLD 1737).

2. Malik Muhammad Awais Khalid, Advocate/Amicus Curiae also submitted his written brief and adopted certain arguments advanced by Barrister Lamia Naizi. Additionally, in order to highlight the mandatory force of the word ‘Shall” he put much emphasis on Section 8 of the Pakistan Medical and Dental Council, 2019, Section 3(4) of the Punjab Environmental Protection Act, 2017, Section 4 of Article of Association of Lahore Waste Management Company, Section 7(1) of the Punjab Village Panchayats and Neighbourhood Councils Act, 2019 and Section 5 of The Pakistan Engineering Council Act, 2015. He further added that there are certain Acts and Ordinances in Pakistan according to which the authorities are bound to convene mandatory meetings from time to time.

3. Arguments heard and record perused.

VI. DETERMINATION BY THE COURT

1. The argument of learned counsel for the Petitioner is that the Petitioner was entitled to be upgraded within 30 days of the Promotion Boards meeting in terms of Notification dated 11.06.2007 but unfortunately the Respondents did not convene any meeting till his retirement, reasons best known to them. The learned Counsel for the Respondents could not give any plausible reply rather admitted in report and parawise comments that no meeting was held in 2014 whereas the same was convened after the retirement of the Petitioner on 12.06.2015. In order to proceed further it is necessary to discuss the moot points.

2. Whether non-convening mandatory meeting of the Board by the Authority amounts to miscarriage of justice and denial of benefits of Notification?

3. The Petitioner has claimed that he is entitled for his TSU in the light of Notification dated 11.06.2007, relevant part of the same is reproduced as under:

“1. In continuation to above notifications, it is hereby clarified that the Time Scale Upgradation Boards shall be held twice in a year within 30 days of the Promotion Boards. However, where Promotion Board could not be held for any reasons the Time Scale Upgradation Board shall be held regularly.”

(a) Meaning of Shall as used in the notification to imply mandatory compliance of the meetings.

1. According to Black’s Law Dictionary, the term “shall” is defined as follows:

“As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term “shall” is a word of command, and one which has always or which must be given a compulsory meaning: denoting obligation. It has a peremptory meaning, and it is generally imperative or mandatory. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears.”

1. Further the Lord Plummer J. in People v. O’Rourke, 124 Cal.App.752, 758-59 (Cal.Ct.App. 1932) interpreted the word “Shall” in the following words:

“The legislature did not use the permissive word “may”, but that word, where the public interest are involved by the action of a ministerial officer, is often construed to take on the mandatory form. (County of Los Angeles v. State of California, 64 Cal.App.290) [222 P. 153]; Stockton Plumbing Supply Co. v. Wheeler, 68 Cal.App.592 [229 P. 1020].

In 57 C.J., page 548, the word “shall” is defined where it relates to a ministerial act from which it distinctly appears that the word is mandatory if the public interests are involved. It is there said: “ In common or ordinary parlance, and in its ordinary signification, the term “shall” is a word of command, and one which has always or which must be given a compulsory meaning: denoting obligation. It has a peremptory meaning, and it is generally imperative or mandatory. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears; but the context ought to be very strongly persuasive before it is softened into a mere permission,” etc.”

1. It is also essential to comprehend the other Laws, wherein the Principle regarding convene of meeting has been recognized. Section 8 of the Pakistan Medical and Dental Council Ordinance, 2019, states that:

“The council shall be meet at least once in three months at such time and place as may be decided by the president.”

1. Section 3 of the Punjab Environmental Protection Act, 1997, is re-produced as under:

2. Establishment of the [Punjab] Environmental Protection Council. (1) The Government shall, by notification in the official Gazette, establish a Council to be known as the Punjab Environmental Protection Council consisting of …

(2) The Members of the Council, other than ex- officio members, shall be appointed in accordance with the prescribed procedure and shall hold office for a term of three years.

(3) The Council shall frame its own rules of procedure.

(4) The Council shall hold meetings as and when necessary, but not less than two meetings shall be held in a year.

(5) The Council may constitute committees of its members and entrust them with such functions as it may deem fit, and the recommendations of the committees shall be submitted to the Council for approval.

(6) The Council or any of its committees may invite any technical expert or representative of any Government Agency or non-governmental organization or other person possessing specialized knowledge of any subject for assistance in performance of its functions.

1. Section 4 of the Article of Association of Lahore Waste Management Company, which relates to Annual General Meeting, is re-produced as under:

“A general meeting to be called Annual General Meeting shall be held, in accordance with the provision of Section 158, within eighteen (18) months from the date of incorporation of the company and thereafter once at least in every year calendar year within a period of four (4) months following the close of its financial year and not more than fifteen (15) months after the holding of its preceding Annual General Meeting as may be determined by the Directors.”

1. Section 7 of the Punjab Village Panchayats and Neighbourhood Councils Act, 2019, is also relevant, which reproduced as under:

“7. General and extra-ordinary meetings of common assembly.--(1) Every common assembly shall hold not less than two general meetings in tttttevery calendar year on such dates as may be appointed by its chairperson.”

1. Section 5 of the Pakistan Engineering Council Act, 1975, is also significant, therefore, the same is reproduced as under:

“5. Annual General Meeting of the Council.--(1) An annual general meeting of the Council shall be held at the headquarters of the Council at such time as may be appointed by the Executive Committee.

1. Who was responsible to convene meeting of Time Scale Upgradation Boards and when it was mandatory to hold twice in a year, what was its composition?

19. As per Notification dated 11.06.2007 the Petitioner is eligible for promotion being serving employee of the Respondent-WAPDA. Notification dated 05.03.2013 clearly depicts that the same is applicable to the Officers, who are in service on 15.02.2013 and admittedly the Petitioner was retired from service on 15.03.2015 and could not be granted TSU only because of non-convening of TSU Board’s meeting. Failure to convene the aforesaid TSU Board’s Meeting twice in the years from 2013 to 2016 amounts to non-compliance and violation of afore-referred mandatory principle lead to take a penal action. Reliance is placed on “Muhammad Tariq Masood, CEO Saudi Pak Leasing Company Limited v. Commissioner (Specialized Companies Division) SECP” (2018 CLD 44) (SECP), wherein it has been held:

“Failure to convene Annual General Meeting by Company even in extended period of one month as required under Section 158(1) of the Companies Ordinance, 1984. The Appellant being a CEO was responsible to ensure timely preparation of accounts and removal of the objections of the BOD in an appropriate manner, however he failed to perform the required role. The other directors should not be instrumental to violate the mandatory requirements of the law and in case of any objection on the accounts they should act in accordance with law.”

1. Further relied on “National Transmission and Despatch Company Limited v. Corporarization and Compliance Department, SECP” (2018 CLD 197), wherein the Default under section 158 of the Companies Ordinance, 1984 had been established, however by considering the facts of the case and subsequent compliance of the company, Commission took lenient view and Penalty of fine imposed on the appellant was converted into a warning and appellant CEO of the Company was directed to ensure strict compliance of the relevant provisions of the law in future.

2. How many TSU and TSUB have been held from year 2013 to 2016?

3. It is established in the report and parawise comments in paragraphs No. 5 and 6, that no meeting of Senior Selection Board (SSB) for grant of TSU in BPS-20 was held during 2014 or during the ex-officer’s service tenure in 2015 (i.e. 01.01.2015 to 15.03.2015). However, in the year 2015 Meeting of Senior Selection Board was held on 12.06.2015.

VII. ANALYSIS OF THE COURT

22. The Petitioner had embarked upon a well-founded expectancy of time scale promotion since, on one hand his tenure of service was equated with the required overall length of service necessary for becoming eligible to be considered for such promotion and secondly and most importantly when the Promotion Policy of the Department itself provided that the meeting of the Board for the purpose of time- scale promotion shall be held twice a year. This directive of the Policy is clearly reflective of the intentions of the policy maker that the case of an employee, whose right to get time-scale promotion is accrued, must be dealt with immediately and in no case be kept dormant for more than six months. Had it not been the intention of the policy maker, the word ‘shall’ should not have been used, which is a mandatory expression and manifest purpose of the rule/policy that it must be acted upon as a general course and depart from that should not be resorted therefrom.

23. The case of Petitioner is a case of hope and legitimate expectation well founded on the completion of required overall length of service necessary for time-scale promotion and the availability of Promotion Policy of the respondent department, wherein it is clearly stated that meeting of the Board for the purposes of giving time-scale promotion will be held twice a year. In case titled “Chairman, Federal Board of Revenue, Islamabad versus Mrs. Naureen Ahmed Tarar etc”(2020 SCMR 90), the August Supreme Court of Pakistan has observed that the principle of legitimate expectancy aims at enforcing fairness and preventing arbitrariness. This rule of fairness and non-arbitrariness is recognized in our jurisprudence to mean that an advantage or benefit derived from a competent legal dispensation, departmental practice or established procedure that has been extended to and enjoyed by a person may legitimately be expected to remain available unless notice or opportunity to defend or adjust his position is given to that person. The doctrine of legitimate expectation is rooted in Article 25 of the Constitution which abhors arbitrariness and insists on fairness in all administrative dealings. It has now gained importance in administrative law as a component of natural justice, non-arbitrariness and Rule of law. It aims at checking the growing abuse of administrative power as a supplement to the principles of natural justice, unreasonableness, fiduciary duty of administrative authorities. In R. v. Secretary of State, (1987)2 All.E.R. 518, Taylor, J., observed:

“......... doctrine of legitimate expectation in essence imposes a duty to act fairly. Whilst most of the cases are concerned, as Lord Roskill said with a right to be heard, I do not think the doctrine is so confined. Indeed, in a case where ex hypothesis there is no right to be heard, it may be thought the more important to fair dealing that a promise or undertaking given by a Minister as to how he will proceed should be kept. Of course such promise or undertaking must not conflict with his statutory duty or his duty, as here, in the exercise of a prerogative power. In accept the submission of counsel for the Secretary of State that the respondent cannot fetter his discretion. By declaring a policy he does not preclude any possible need to change it. But then if the practice has been to publish the current policy, it would be incumbent on him in dealing fairly to publish the new policy, unless again that would conflict with his duties.”

In case titled “Punjab Communications Ltd vs. Union of India & Others” cited as 1999 SC 1801, the Indian Supreme Court observed that principle of ‘legitimate expectancy’ is at the root of the rule of law and requires regularity, predictability and certainty in governments’ dealings with the public. The Court further observed that doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way. Continuing on the subject of legitimate expectation the Court held that it may be procedural or substantive or both. The procedural part of it relates to a representation that a hearing or other appropriate procedure will be afforded before any change in decision is made. The substantive part of the doctrine relates to the representation that a benefit of substantive nature will be granted or will be continued. Procedural legitimate expectation cannot be withdrawn without giving a person concerned some opportunity of advancing reason for contending that it should not be withdrawn. Similarly, substantive expectation cannot be withdrawn unless some rational grounds for withdrawing it has been communicated to the person concerned and on which he has been given an opportunity to comment. To this Court, the principle of legitimate expectation in the substantive sense mandates that the decision making authority can normally be compelled to give effect to it unless overriding public interest demands otherwise.

Coming back to present case, there is no lapse, which could be attributed to the petitioner i.e., inquiry against him etc. that could have impaired his claim, tainted his candidature and casted any shadow of impediment on his claim to be granted time-scale promotion at the time of completing the required service, when he was still holding his office of duties. The requirement, which was on the part of the Petitioner, in terms of completion of necessary tenure of service, stood complied but the requirement, which was to be fulfilled by the department i.e., convening of meeting for the purpose of granting time scale promotion twice a year, was not complied with for the whole year 2014 without assigning any reason for not convening it, when the Petitioner had not only made himself eligible for the said promotion after meeting the criteria but he was also serving as a regular employee but the inaction on the part of Respondents department by way of non-convening the required meeting of the Promotion Board negated his well rooted right of time-scale promotion against the legitimate expectation, which had already accrued in his favor well before his superannuation. Furthermore, the Respondents have neither explained/brought on record any plausible reason for non-convening the meeting nor have annexed any document to show that the Petitioner was not eligible for the grant of TSU. Although promotion is not deemed as a vested right, yet to be considered for promotion is certainly a right which cannot be negated especially when the right has already accrued without impediment and the only lapse posing hindrance in the way of such a right is an inaction on the part of department and its non-fulfillment of rules/policy. The Indian Supreme Court in A. Satyanarayana and ors. vs. S. Purushotham and ors. [(2008) 5 SCC 416] also held that: “Although mere chance of promotion is not a fundamental right, but right to be considered therefor is.” In another case Ajit Singh & Ors. v. State of Punjab & Ors. [(1997)5SCC201] the Indian Supreme Court further held:

“In Indian Admn. Service (S.C.S.) Association UP. and ors. v. Union of India and Ors.: 1992(3)SCALE126 in paras 14 & 15, another Bench of three Judges had held that no one has a vested right to promotion or seniority but an officer has an interest to seniority acquired by working out the rules. In A.B.S.K. Sangh v. Union of India and Ors. JT (1996) SC 274, a Bench to which two of us, K. Ramaswamy & G.B. Pattanaik, JJ., were members, following the above ratio, held that no one has a ‘vested right to promotion or seniority but an officer has an interest to seniority acquired by working out the rules’. It could be taken away only by operation of valid law.” (emphasis supplied)

The Honorable Supreme Court of Pakistan in “Walayat Ali Mir vs. Pakistan International Airlines Corporation through its Chairman and another” (1995 SCMR 650) also expressed similar opinion and hold that any breach or deviation from rules/policy on the part of the Department will entitle the employee to challenge it:

“The contention that no employee has a vested right in promotion may be correct but where rules, regulations and policy have been framed for regulating appointment and promotion, any breach or deviation for mala fide reasons or due to arbitrary act of the competent Authority, the aggrieved person would be entitled to challenge it.”

24. The act of non-convening of meeting for awarding time-scale promotion to the employees including the Petitioner, is an in-action and disregard of the Promotion Policy on the part of the Respondent Department and the Petitioner cannot be deprived of his right of time-scale promotion due to such a fault rested solely on the shoulders of the department. It is settled law that where the law requires an act to be done in a particular manner, it ought to be done in that manner alone, and such a dictate of law cannot be termed as a technicality. Reliance has been placed on “Muhammad Anwar and others versus Mst. Ilyas Begum and others” (PLD 2013 SC 255). The above act of the Respondent department has not only deprived the Petitioner of his vested right to be considered for promotion but it has also caused him permanent loss of pensionary benefit of higher grade and he cannot be made to suffer on account of the departmental lapse. The August Supreme Court of Pakistan in “Secretary Schools of Education and others versus Rana Arshad Khan and others” (2012 SCMR 126) while granting Proforma promotion to retired civil servant held that:

“it has not been disputed before this Court that much before the retirement of the respondents, a working paper was prepared by the department with regard to their promotion but the matter was delayed without any justifiable reason and in the meanwhile respondents attained the age of superannuation. They cannot be made to suffer on account of the departmental lapse.”

(Underline is mine)

In case titled “Mrs. Naseem M. Qadri versus Federation of Pakistan and another” (2009 PLC (C.S.) 229) the Court has held as under:

“It is a settled principal of law that if service, benefits have actually accrued to an employee but for one reason or the other such benefits could not be awarded to such an employee, then, irrespective of the fact of his/her having retired from service, the department concerned shall still have to further consider her case for such a promotion and to allow him/her benefits of such a promotion, even after retirement from service.”

In “Ch. Azhar Hussain v. Secretary to Government of the Punjab LG&CD Department, Lahore and 2 others” (2016 PLC (C.S.) 693) this Court in a similar situation where name of the Petitioner, which was duly recommended by PSC, was not considered for promotion in Formal Board meeting, which was convened just after four days of his retirement and instead his juniors were promoted, held that:

“Close scrutiny of Rules, 1983, shows that unlike Section 8(5) of the Punjab Civil Servant Act, 1974, there is no specific provision which precludes or debars the Board to consider the case of the petitioner for promotion after his retirement.

The above act of the respondent department has not only deprived the petitioner of his vested right to be considered for promotion but it has also caused him permanent loss of pensionary benefit of higher grade.”

25. Promotion is generally an advancement in rank, which is granted on the basis of acquiring extra-qualifications or enhancement of skills or awarded in lieu of longstanding services of the employee as a token of satisfaction and appreciation over services rendered by him. The concept of Proforma Promotion is to remedy the loss sustained by an employee/civil servant on account of denial of promotion upon his legitimate turn due to any reason but not a fault of his own and in cases where a temporary embargo was created against his right for such promotion or a legal restraint was posed against his claim owing to any departmental proceedings inquiry etc. against him and the said obstacle is done away with ultimately then in such a situation, his monetary loss and loss of rank is remedied through proforma promotion. The August Supreme Court in “Regarding Putting Of Two Government officers Namely Hasan Waseem Afzal And His Wife Farkhanda Waseem Afzal as Osd” (2013 SCMR 1150), also held that the civil servants who were not promoted for want of required PERs because of their posting as OSD, was not an act of their own doing and thus could not be left to suffer for the very reason. It was observed by the Court:

“Their promotion to the next higher, scale has been denied for want of PERs and PERs have not been complied on account of their posting as OSDs which is not an act of their own doing. “Let them suffer” may be a command of expediency but we cannot approve it when, “give them their due” is a command of justice, which prima facie appears to have been denied to them out of indignation and ill will of the high ups.”

In another case “Dr. Syed Sabir Ali Vs, Government of The Punjab through Secretary, Health Punjab and others” (2008 SCMR 1535) the Hon’ble Supreme Court also taken up the matter where the promotion of appellant was due much before his retirement but was denied to him on the ground that a restraining order was passed by the Tribunal in another appeal and he retired from service after attaining age of superannuation. It was observed as under:

“5. The entitlement of the appellant for promotion was not denied rather the process of promotion was withheld on the excuse of above referred order of Tribunal. We having considered the matter, have found that the appellant was wrongly prevented to get next promotion and discharge the higher responsibilities as a result of which he was not only deprived of the legitimate right of promotion but was also caused permanent loss of pensionary benefit of the higher grade. In view of the above, we direct that Departmental Authorities should proceed to consider the case of appellant for pro forma promotion as per his entitlement in accordance with law and complete the process within three months. This appeal is accordingly allowed with no order as to costs.”

1. While discussing Fundamental Rules, pertaining FR-17(1) the Court in “Prime Minister etc. Versus Major (R) Muhammad Habib Khan” (2016 PLC (C.S.) 621) highlighted that the conditions required to be fulfilled for being eligible to be considered by the appointing authority in respect of the benefits of proforma promotion are; (i) the person must be a civil servant and, (ii) he/she was entitled to promotion from a particular date and, (iii) was wrongfully prevented from rendering service to the Federation in a higher post for no fault of his/her.

27. No doubt promotion is not the vested right of a civil servant but where he is fully qualified for promotion and there is no tangible clog in his service record, he has a right to expect that his case will be considered for promotion in accordance with law, rules, regulations and eligibility criteria / policy formulated for regulating promotion by the Government. Any breach or deviation therefrom for mala fide reasons or due to arbitrary act of his superiors or peers or the competent authority, is not warranted in law.

28. At this juncture, Syed Moazzam Ali Shah, learned counsel for the Petitioner has referred to an office order No. FO(B&F)/10-126 vol-50/1282-1381 dated 30.09.2019 issued by Finance Division (Admin & Regulations) Wing of WAPDA; wherein Benefit of Time scale Promotion is given to those employees who were eligible for TSU but were not allowed the same due to non-conducting of respective board’s meeting. This very order is held applicable from the date of superannuation.

29. In view of the position explained above it is to conclude that a civil servant has a fundamental right to be promoted even after his retirement through awarding pro forma promotion provided his right of promotion accrued during his service and his case for promotion could not be considered for promotion for no fault of his own and he is retired on attaining the age of superannuation without any shortcoming on his part pertaining to deficiency in length of service or in the form of inquiry and departmental action so taken against his right of promotion. The Petitioner was otherwise eligible and qualified to be considered for grant of time-scale promotion in the year 2014 and he cannot be penalized for departmental lapses and negligence on the their part regarding non-convening of Promotion Board meeting till retirement of the Petitioner, which was otherwise obligatory upon them. The Petitioner cannot be made to suffer on account of inaction, omission or negligence on the part of the Respondents department in late convening of the meeting contrary to the directives of Promotion Policy.

VII. CONCLUSION

30. In view of what has been discussed above, instant petition is allowed. The impugned order dated 14.02.2017 is set-aside and matter is remanded to the Respondents to reconsider the plea of the Petitioner particularly in consideration to the above referred office order dated 30.09.2019 without being influenced from the observation made hereinabove.

(M.M.R.) Petition allowed

PLJ 2020 Lahore 524 [Multan Bench, Multan]

Present: Mushtaq Ahmad Tarar, J.

MUHAMMAD AKMAL and another--Petitioners

versus

ADDITIONAL DISTRICT & SESSIONS JUDGE and 2 others--Respondents

W.P. No. 16199 of 2015, decided on 3.11.2015.

PunjabLocal Government Act, 2013 (XVIII of 2013)--

----S. 27(1)(b)--Constitution of Pakistan, 1973, Art. 199--Rejection of nomination papers--Appeal--Dismissed--Joint candidature--Qualification of candidate--Underage of petitioner--Factual contriversy--Challenge to--A person shall qualify to be elected as a member or to hold an elected office of Local Government if he except--Youth member, is not less than 25 years of age on last date fixed for filing nomination papers--Copy of alleged birth certificate placed on record by petitioners reveals that same was got issued and prepared by Petitioner No. 1 after rejection of his nomination papers by Returning Officer--It is admitted- fact that NIC of Petitioner No, 1 was-issued in-the year 2010 in which date of birth of Petitioner No. 1 is clearly mentioned--There is no explanation on behalf of Petitioner No. 1; that when his date of birth was mentioned as 10.06.1992 in his NIC issued in year 2010 why he did not move concerned quarters for correction of his date of birth, if same was wrongly mentioned in his National Identity Card--Respondents No. 1 & 2 have rightly rejected nomination papers of petitioners through impugned orders--Factual controversy alleged by petitioners cannot be resolved at this stage in writ petition when according to his NIC of Petitioner No. 1 issued in year 2010 his date of birth was mentioned as 10.Q6,1992 and he did not challenge said entry before any forum prior to rejection of nomination papers of petitioners--Petition dismissed. [P. 526] A, B & C

Mr. Mahar Zameer Hussain Sandhal Advocate for Petitioners.

Mr. Shaukat Bilal Khan Bangash, Standing Counsel for Respondents.

Date of hearing: 3.11.2015.

Order

The petitioners have filed this writ petition against the order dated 28.10.2015 passed by Respondent No. 1, whereby Respondent No. 1 dismissed the appeal of petitioners filed against the order dated 13.10.2015 passed by Returning Officer/Respondent No. 2 for rejection of nomination papers of the petitioners due to underage of Muhammad Akmal Petitioner No. 1, who was candidate for Vice Chairman.

1. The petitioners have asserted in this writ petition that the petitioners submitted nomination papers for the seat of Chairman and Vice Chairman of U.C. No. 127, Karpal Pur, Multan as joint candidature; that during the scrutiny, it was found that the age of Petitioner No. 1 Muhammad Akmal is 23 years and due to that reason their nominations papers were rejected by Respondent No. 2; that the petitioners filed appeal before Respondent No. 1, which was also dismissed illegally vide order dated 28.10.2015.

2. Learned counsel for the petitioners contended that according to birth certificate of Petitioner No. 1, his date of birth was 10.02.1990 and he was quite eligible to contest the election having the age of more than 25 years at the time of submission of nomination papers; that at the time of issuance of National Identity Card (NIC) his date of birth was got wrongly mentioned by his parents; that the birth certificate is public document and presumption of truth is attached to it; that the Respondents No. 1 & 2 have illegally rejected the nomination papers of the petitioners. He placed reliance upon “Ali Hassan alias Jamshaid vs. The State” (2012 SCMR242).

3. Conversely, the standng counsel argued that alongwith the nomination papers the Petitioner No. 1 submitted the copy of National Identity Card, according to which his date of birth was 10.06.1992 and he was less than 23 years and in this way he was not qualified to contest the election being less than 25 years of age prescribed by Section 27 of Punjab Local Government Act, 1913.

4. Arguments heard, record perused.

5. The perusal of record reveals that the petitioners submitted nomination papers as joint candidature for the seat of Chairman and Vice Clairman of U.C. No. 127, Karpal Pur, Multan. The Petitioner No. 1 Muhammad Akmal was candidate for Vies Chairman, according to nomination papers, he mentioned the number of his National Identity Card in his nomination papers Bearing No. 36303-0692595-1. The copy; of National Identity Card was also annexed with the nomination papers, according to which his date of birth was 10.06.1992 and he was of the age of 23 years at the time of submission of nomination papers. The provisions of Section 27(1)(b) of Punjab Local Government Act, 2013 provide that a person shall qualify to be elected

as a member or to hold an elected office of Local Government, if he except the youth member, is not less than 25 years of age on the last date fixed for filing the nomination papers. The nomination papers were filed by the petitioners in first week of October, 2015 on which date his age was about 23 years, according to his own National Identity Card submitted by him alongwith his nomination papers. Therefore, the learned Returning Officer has rightly rejected the nomination papers of both the petitioners as they were contesting the election as joint candidature and one of them Petitioner No 1 Muhammad Akmal candidate for Vice Chairman was under age. Thereafter, the petitioners filed appeal before Respondent No. 1 on 19.10.2015 while relying upon the alleged birth certificate of Petitioner No. 1 alleging that the correct date of birth of Petitioner No 1 was 10.02.1990. The copy of alleged birth certificate placed on record by the petitioners reveals that the same was got issued and prepared by the Petitioner No. 1 on 18th October, 2015 after the rejection of his nomination papers by the Returning Officer. It is admitted- fact that the National Identity Card of the Petitioner No, 1 was-issued in-the year 2010 in which the date of birth of Petitioner No. 1 is clearly mentioned as 10.06.1992. There is. no. explanation on behalf of Petitioner No. 1; that when his date of birth was mentioned as 10.06.1992 in his National Identity Card issued in the year 2010 why she did not move the concerned quarters for the correction of his date of birth, if the same was wrongly mentioned in his National Identity Card.

7. After going through the record, I am of the considered, view that Respondents No. 1 & 2 have rightly rejected the nomination papers of the petitioners through the impugned orders dated 13.10.2015 and 28.10.2015, respectively. The factual controversy alleged by the petitioners cannot be resolved at this stage in writ petition when according to his National Identity Card of Petitioner No. 1 issued in the year 2010 his date of birth was mentioned as 10.6.1992 and he did not challenge the said entry before any forum prior to the rejection of nomination papers of the petitioners.

1. Resultantly, I dismiss the writ petition in limine.

(Y.A.) Petition dismissed.

PLJ 2020 Lahore 526

Present:Jawad Hassan, J.

SHELL PAKISTAN LIMITED--Petitioner

versus

PUNJAB through the Secretary Ministry of Finance etc.--Respondents

W.P. No. 37861 of 2020, decided on 27.8.2020.

Punjab Sales Tax Services Act, 2012--

----Ss. 63, 64, 65, 66, 67 & 68--Constitution of Pakistan, 1973, Art. 4, 10-A, 18, 23 & 199--Issuance of recovery notice--Filling of appeal in which no stay was granted--Filling of writ petition wherein stay was granted later on dismissed--Protection of fundamental rights--Doctrine of stop gap--Challenge to--This order will basically discussimportant questions which arise out of Constitution regardingconstitutional provisions onstay of recovery in tax matters, nature of writs and grant of interim relief as stop gap arrangement as well asconcept of statutory right of appeal with inbuilt stay provisions--Petitioner has a fundamental right to be treated as per Article 4 ofConstitution which clearly states that every citizen has an inalienable right to be treated in accordance with law and no action detrimental to his/her life, liberty, reputation or property shall be taken except as per law--While Article 23 ofConstitution provides right to acquire, hold and dispose of property which is protected under Article 24 ofConstitution--Appeal ofPetitioner is pending withconcerned authority andcase has not yet ripened because of further appeals toAppellate Tribunal under Section 66 ofAct and a reference to Division Bench under Section 67-A ofAct--Therefore,Petitioner’s rights have not been determined so far byTax Authority--However, Article 10-A ofConstitution provides and protects fundamental right of citizen to have fair trial and due process and Courts are charged with duty to protect those rights includingrights of tax payers and underdoctrine of stop-gap,Courts have granted interim relief duringpendency ofmatter-- Petition was disposed of. [Pp. 530 & 531] A, B, C

Ref. PTD 679 2003 PTD 1746.

Punjab Sales Tax Services Act, 2012--

----Ss. 64, 66 & 67A-(2)(3)--Punjab Sales Tax Services (Adjudication and Appeals) Rules 2012--R. 11--Constitution of Pakistan 1973, Art. 199--Procedure for Appeals--Power of Commissioner Right to file Reference--It is evident that Section 64 ofAct provides procedure forappeals toCommissioner (Appeals) with inbuilt stay by stating thatCommissioner (Appeals) may staymatter after hearingparties and can also confirmsame which remains operative upto 60 days--Moreover,same provision also provides totax payer that by filing appeal toAppellate Tribunal under Section 66 ofAct and under Section 67(2)(3) ofAct,Appellate Tribunal can also passinterim order and then confirmstay which may remain operative for ninety (90) days period--Thereafter,taxpayer has a right to file reference toHigh Court under Section 67A ofAct beforeDivision Bench which only hearsmatters onquestion of law--In this caseprayer ofPetitioner is to directRespondents to decideappeal within prescribed period and under Section 64(2) in whichCommissioner (Appeals) may adjournhearing ofappeal from time to time and has to dispose offappeal within a period of 60 days which is time bound provision requiringAppellate Tribunal to decide within a given time frame as prescribed by law--Perusal of file reveals thatPetitioner’s appeal was filed (Annex-D1 ofPetition) and has not been decided so far byCommissioner (Appeals) despite lapse of statutory deadline--Therefore, this Court has to protectPetitioner’s right under Article 18, 4, 10-A ofConstitution as a stop-gap arrangement--Stop-gap arrangement under tax laws is derived from Article 199(1)(4)(a) read with Section 66, 67 and 68 ofAct coupled with judgments ofCourts passed from time to time--The Respondents while decidingappeal has to followPunjab Sales Tax on Services (Adjudication and Appeals) Rules, 2012 in which Rule 11 clearly states that it isresponsibility ofadjudicating officer to protectlegitimate revenue rights ofGovernment and give genuine relief totaxpayer consistent with law--I am inclined to grant temporary relief toPetitioner by directing Respondent No--3 to decideappeal ofPetitioner within a period of two (02) months and stay application within a period of one (01) month in accordance with law, fromreceipt of certified copy of this order--However, tilldecision of stay application byRespondent No. 3, no coercive measures for recovery of disputed amount shall be taken againstPetitioner byRespondents.

[Pp. 530, 531, 532 & 533] A, B, C, F, G & I

Constitution of Pakistan, 1973--

----Art. 37-D--Expeditious justice--Doctrine of stop-gap arrangements--Under Article 37-d ofConstitution,Courts ensure expeditious justice assame is an obligation on part ofState--Therefore, Courts invoke doctrine of stop-gap arrangement from time to time in tax/revenue matters. [P. 531] D

PLD 2020 Lahore 632.

Constitution of Pakistan, 1973--

----Art. 199(1)(4)--Adequate Remedy--Doctrine of statutory rights of appeal--Doctrine of Statutory Rights of Appeal arises out of Article 199(1) and 199(4) ofConstitution whereHigh Court, if it is satisfied that no other adequate remedy is provided by law, issues writ of mandamus and prohibition keeping in view Article 199(4) ofConstitution andtime frame given therein but this right is subject to notice toprescribed law officer with an opportunity of being heard and for reasons to be recorded in writing--Article 199 elaborates that in tax matters, after hearinglaw officer, ifCourt is satisfied, it may make an order for interim relief after recording reasons--This writ petition has been heard at length and is being decided onsame date with directions toRespondents to do whatlaw requires them to do under Article 199 ofConstitution andprovisions ofAct. [Pp. 532 & 533] E & H

Khawaja Aizaz Ahsan, Advocate for Petitioner.

Barrister Umair Niazi, Additional Advocate General on Court’s Call.

Date of hearing: 27.8.2020.

Order

The Petitioner has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) against recovery notice dated 23.07.2018 issued by the Respondent No. 5/Additional Commissioner with the prayer that the Respondents be restrained to recover the amount till finalization of Petitioner’s appeal pending before the Respondent No. 4/Commissioner (Appeals).

A. BRIEF FACTS

1. The Petitioner is a public limited company incorporated under the Companies Ordinance, 1984 and this petition is filed on behalf of the Petitioner through its authorized attorney. After issuance of show cause notice dated 04.04.2018 by the Respondent No. 5, the Petitioner filed detailed reply. Order in Original was passed by aforesaid Respondent on 23.07.2018 against which the Petitioner immediately filed appeal before the Respondent No. 4/Commissioner (Appeals) under Section 63 of the Punjab Sales Tax Services Act, 2012 (the “Act”). When no stay was granted to the Petitioner by the Commissioner (Appeals), the Petitioner approached this Court on 18.10.2018 by filing W.P. No. 239851 of 2018 challenging constitution of Punjab Revenue Authority (PRA), etc wherein stay was granted but later on aforesaid writ petition was dismissed.

B. PETITIONER’S ARGUMENT

1. Learned counsel for the Petitioner argues that under Section 64 of the Act the Commissioner (Appeals) has powers to stay the recovery till decision of the appeal and has relied on judgment of this Court cited as “Reliance Commodities (Private) Ltd versus Federation of Pakistan and others” (PLD 2020 Lahore 632). He further argues that access to justice is a fundamental right of the Petitioner and relied on “Mehram Ali And others Versus Federation of Pakistan and others” (PLD 1998 SC 1445) in which it has held that an essential feature of such right includes the determination of any grievance or dispute by an independent tribunal. He adds that the Petitioner cannot be forced to make payment unless the matter is finally adjudicated by an independent tribunal. Next states that if the Respondents are not restrained from recovering the impugned amount, the Petitioner will suffer an irreparable loss during pendency of appeal before the Respondent No.4.

C. RESPONDENT’S ARGUMENT

1. Learned Additional Advocate General objected to maintainability of the petition on the ground that since the appeal of the Petitioner is pending and there is no stay order in the field therefore, impugned notice was validly issued by the authority to recover the amount.

2. Heard. Record perused.

3. This order will basically discuss the important questions which arise out of Constitution regarding the constitutional provisions on the stay of recovery in tax matters, nature of writs and grant of interim relief as stop gap arrangement as well as the concept of statutory right of appeal with inbuilt stay provisions.

D. CONSTITUTIONAL PROVISIONS IN TAX MATTERS.

1. The prayer made in this petition is twofold. Firstly the Petitioner is seeking direction under Article 199 of the Constitution to the Respondent No. 4 by way of writ of mandamus to decide the application within the time frame provided under Section 63, 64 and 65 of the Act. Secondly, the Petitioner is seeking writ of prohibition under Article 199 of the Constitution against the Respondents to restrain from taking any adverse action due to inbuilt stay mechanism provided under the law.

2. According to Article 199 of the Constitution, any party aggrieved may approach the High Court for such relief but the High Court while passing any order in tax or revenue matters has to consider Article 199(4) of the Constitution which demonstrate that the interim order should not interfere with public works or otherwise harmful to public interest or should have an effect of impeding the assessment or collection of public revenues. The said Article further manifests that the Court shall not make any interim order unless prescribed law officer has been given notice of the application or has had an opportunity of being heard and the Court has to record reasons in writing. Today learned Additional Advocate General appeared and has been heard on behalf of the Respondents and thus the requirement of Article 199(4) of the Constitution is met with.

3. In this case, the Petitioner has a fundamental right to be treated as per Article 4 of the Constitution which clearly states that every citizen has an inalienable right to be treated in accordance with law and no action detrimental to his/her life, liberty, reputation or property shall be taken except as per law. While Article 23 of the Constitution provides right to acquire, hold and dispose of property which is protected under Article 24 of the Constitution.

4. In the case in hand, the appeal of the Petitioner is pending with the concerned authority and the case has not yet ripened because of further appeals to the Appellate Tribunal under Section 66 of the Act and a reference to learned Division Bench under Section 67-A of the Act. Therefore, the Petitioner’s rights have not been determined so far by the Tax Authority. However, Article 10-A of the Constitution provides and protects fundamental right of citizen to have fair trial and due process and Courts are charged with duty to protect those rights including the rights of tax payers and under the doctrine of stop-gap, the Courts have granted interim relief during the pendency of the matter. Reliance is placed on M/s Pak Saudi Fertilizers Ltd. v. Federation of Pakistan and others (2002 P T D 679), Z.N. Exports (Pvt.) Ltd. v. Collector Sales Tax etc. (2003 PTD 1746), “Messrs Pearl Continental Hotel, Lahore through Director Finance and another versus Customs, Excise And Sales Tax Appellate Tribunal, Lahore and another “ (2005 PTD 1368), “Sun -Rise Bottling Company (Pvt.) Limited versus Federation of Pakistan and 4 others” (2006 PTD 535), “Karachi Shipyard and Engineering Works Limited, Karachi versus Additional Collector, customs, Excise and Sales Tax (Adjudication-III), Government of Pakistan, Karachi and 2 others” (2006 PTD 2207), “Pak Suzuki Motors Co. LTD. through Senior General Manager (Corporate Planning & Logistics), Karachi versus Collector Of Customs through Assistant Collector (Processing), Karachi” (2006 PTD 2237) and “Mari Petroleum Company Ltd. versus Appellate Tribunal Inland Revenue and others” (2016 PTD 2406) wherein direction was issued to the authorities to decide the appeal and temporary relief was granted as stopgap measures as discussed in the above referred cases by holding that an assessee is entitled to adjudicate in respect of his disputed tax liability by at least one independent forum outside the hierarchy of the Respondent department.

5. Under Article 37-d of the Constitution, the Courts ensure expeditious justice as the same is an obligation on part of the State. Therefore, Courts invoke doctrine of stop-gap arrangement from time to time in tax/revenue matters.

6. This Court has already explained the doctrine of ripeness in recent reported judgment cited as “Reliance Commodities Pvt. Ltd. versus Federation of Pakistan and others” (PLD 2020 Lahore 632) wherein it has been held that if the matter is not yet ripened with the authorities, no recovery can be made.

E. STATUTORY RIGHT OF APPEAL AND INBUILT STAY MECHANISM

1. The Doctrine of Statutory Rights of Appeal arises out of Article 199(1) and 199(4) of the Constitution where the High Court, if it is satisfied that no other adequate remedy is provided by law, issues writ of mandamus and prohibition keeping in view Article 199(4) of the Constitution and the time frame given therein but this right is subject to notice to the prescribed law officer with an opportunity of being heard and for reasons to be recorded in writing. Article 199 elaborates that in tax matters, after hearing the law officer, if the Court is satisfied, it may make an order for interim relief after recording reasons. Inbuilt interim stay under the statutory appeals are provided in all general laws especially in tax matters therefore, by examining the provisions of the Act read with Punjab Sales Tax on Services (Adjudication and Appeals) Rules 2012 (the “Rules”) it is evident that Section 64 of the Act provides procedure for the appeals to the Commissioner (Appeals) with inbuilt stay by stating that the Commissioner (Appeals) may stay the matter after hearing the parties and can also confirm the same which remains operative upto 60 days. Moreover, the same provision also provides to the tax payer that by filing appeal to the Appellate Tribunal under Section 66 of the Act and under Section 67(2)(3) of the Act, the Appellate Tribunal can also pass the interim order and then confirm the stay which may remain operative for ninety (90) days period. Thereafter, the taxpayer has a right to file reference to the High Court under Section 67A of the Act before the Division Bench which only hears the matters on the question of law. In this case the prayer of the Petitioner is to direct the Respondents to decide the appeal within prescribed period and under Section 64(2) in which the Commissioner (Appeals) may adjourn the hearing of the appeal from time to time and has to dispose off the appeal within a period of 60 days which is time bound provision requiring the Appellate Tribunal to decide a within a given time frame as prescribed by law. The same mechanism also gives a time frame to the Appellate Tribunal to decide the appeal within six months under Section 67(2) of the Act. Above said provisions clarify that the law has itself provided a time bound mechanism for expeditious disposal with inbuilt statutory right of appeal with inbuilt stay mechanism provided under the Statute in which both the Commissioner (Appeals) and the Tribunal have inbuilt mechanism of passing interim orders and then confirming it within a period of sixty days.

2. Perusal of file reveals that the Petitioner’s appeal was filed on 18.09.2018 (Annex-D1 of the Petition) and has not been decided so far by the Commissioner (Appeals) despite lapse of statutory deadline. Therefore, this Court has to protect the Petitioner’s right under Article 18, 4, 10-A of the Constitution as a stop-gap arrangement. The stop-gap arrangement under tax laws is derived from Article 199(1)(4)(a) read with Section 66, 67 and 68 of the Act coupled with judgments of the Courts passed from time to time. The Respondents while deciding the appeal has to follow the Punjab Sales Tax on Services (Adjudication and Appeals) Rules, 2012 in which Rule 11 clearly states that it is the responsibility of the adjudicating officer to protect the legitimate revenue rights of the Government and give genuine relief to the taxpayer consistent with law.

3. Keeping in view the mandate of Article 37-d of the Constitution for provision of expeditious justice and in the light of DOCTRINE OF LIMINE CONTROL elaborated by this Court in Chairman BoG University of Lahore and others vs Asif Saleem (PLD 2019 Lahore 407), this writ petition has been heard at length and is being decided on the same date with directions to the Respondents to do what the law requires them to do under Article 199 of the Constitution and the provisions of the Act.

4. After hearing learned counsel for the Petitioner and learned Additional Advocate General and in view of the law laid down in aforesaid judgments, as a stop gap measures, I am inclined to grant temporary relief to the Petitioner by directing Respondent No. 3 to decide the appeal of the Petitioner within a period of two (02) months and stay application within a period of one (01) month in accordance with law, from the receipt of certified copy of this order. However, till the decision of stay application by the Respondent No. 3, no coercive measures for recovery of disputed amount shall be taken against the Petitioner by the Respondents.

5. Disposed of. Copy dasti.

(M.M.R.) Petition disposed of

PLJ 2020 Lahore 534

Present:Ch. Muhammad Iqbal, J.

ALLAH DITTA etc.--Petitioners

versus

CHIEF SETTLEMENT COMMISSIONER, PUNJAB etc.--Respondents

W.P. No. 39929 of 2020, decided on 8.9.2020.

Constitution of Pakistan, 1973--

----Art. 199--Evacuee Property and Displaced Persons Laws (Repeal) act, 1975, S. 3(i)(b)--Ex-evacuee Agricultural land--Illegal possession of land--Application for purchase of land--Dismissed--Direction to recover penalty (tawan) from illegal occupants--Challenge to--Only persons who are occupying continuous possession over unallotted/unoccupied ex-evacuee land for four harvests immediately preceding Kharif, 1973 shall be offered first right for sale unless an order of ejectment has been passed against him in respect of such land--Petitioners is admittedly an illegal occupant over evacuee land, as such, he is not considered entitled for any discretionary relief in constitutional jurisdiction of this Court--Petitioners assert that their predecessors purchased land measuring 48 Acre in year 1964 from allottee and since then they are occupying possession of said land--As very allotment of allottee has been cancelled as such possession of subsequent purchaser has no protection of law which extends nil support to land grabbers and illegal occupants--Admittedly disputed land is an evacuee land owned by provincial government and it should be disposed of as per procedure prescribed in Section 3 of Evacuee Property & Displaced Persons Laws (Repeal) Act, 1975-- Courts of Law always keep in mind while dealing with matters relating to public property and public interest--An extraordinary obligation is saddled upon constitutional Courts to keep abreast itself with law and facts of case and when certain material facts unearthed then it should decide matter as per law even without being influenced by respective pleadings of parties--Even if it is presumed that petitioners had purchased land from Mst. Nasima Begum, they could not maintained possession of same as required by second proviso of section 3 of Evacuee Property and Displaced Persons Law (Repeal) Act, 1975--Petitioners neither challenged cancellation orders of allotment nor filed application for purchase of land in question within time rather they remained under illegal possession of land in question till their ejectment--The petitioners are neither owners nor in possession of land in question--They tried to purchase land measuring 88-kanals under garb of their purchased land measuring 58-kanals, 18-marlas, vide mutation No. 319 which had already been resumed in favour of State, as such, petitioners cannot be considered in consecutive possession of land so resumed, as such, they do not fulfill requirements of section 3 of Act ibid--Thus, Chief Settlement Commissioner rightly dismissed application of petitioners for purchase of land in question and concluded that available evacuee land be disposed of through unrestricted public auction--Land in question is a public property which cannot be doled upon any person through private treaty to extend favoritism, nepotism and for undue enrichment of individuals at resources of public, which are meant for ultimate welfare and betterment of people--Further if disposal of said land is desired by concerned authority, same should be disposed of through unrestricted public auction--Counsel for petitioners has failed to point out any perversity, illegality or any jurisdictional defect in impugned order calling for any interference by this Court in its constitutional jurisdiction--Petition was dismissed.

[Pp. 537, 541, 542, 543 & 547] A, B, C, D, E, F & G

2014 SCMR 1351, 2014 SCMR 334, PLD 2005 SC 337 and PLD 2010 Lahore 510.

Malik Sajjad Hussain, Advocate for Petitioners.

Date of hearing: 8.9.2020.

Order

Through this writ petition, the petitioners have challenged the order dated 29.04.2020, passed by the Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner/Administrator (Residual Properties)/Notified Officer, Punjab whereby the Deputy Commissioner/Collector, Kasur was directed to dispose of the available ex-evacuee land measuring 48 Acres situated in Moza Harsay Noshera Tehsil Chunian District Kasur through unrestricted public auction and also to recover penalty (tawan) from the petitioners/ the illegal occupants.

1. Learned counsel for the petitioners submits that disputed land measuring 48 Acre situated in Moza Harsay Noshera Tehsil Chunian District Kasur was purchased by one Allah Ditta from Mst. Sahibzadi Naseem Begum etc. in the year 1964; that father of petitioners namely Ahmed Din purchased the same from Allah Ditta in 1964; that the petitioners have been cultivating the land measuring 20 Acre whereas remaining 28 Acre is barren land; that the respondents resumed the said land without intimation to the petitioners; that the petitioners filed Writ Petition No. 19197/2020 which was dismissed due to non-availability of the land record; that the petitioners filed application to Respondent No. 1 for allotment of the suit land which was dismissed vide order dated 29.04.2020; that the petitioners claiming possession of the land measuring 48 Acre moved application to purchase the said land at current market price, which petition has been dismissed through the impugned orders by the Chief Settlement Commissioner. Hence this petition.

2. I have heard the arguments of learned counsel for the petitioners and have gone through the record with his able assistance.

3. Admittedly, the disputed land is an ex- evacuee rural/agricultural land which was allegedly in illegal possession of the petitioners and they filed application for the purchase of said land on the current market price. After repeal of the evacuee laws the ex-evacuee agricultural land was to be disposed of under Section 3(i)(b) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. The said provision of law are as under:

4. Transfer of Property.--(1) All properties, both urban or 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 Acts and Regulations or which may become available for disposal after such repeal as a result of a final order passed under sub-section (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) ……

(b) in the case of rural properties, by the Board of Revenue of the Province under a scheme to be prepared by the Provincial Government in this behalf:

Provided that agricultural land occupied by a 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 supplied)

As per the above provision of law, the Board of Revenue is empowered to dispose of such land / ex-evacuee rural agricultural land under a scheme to be prepared by the Provincial Government. According to the proviso to clause (b) of Sub-Section (1) of Section 3 of the Act ibid, only the persons who are occupying the continuous possession over unallotted/unoccupied ex-evacuee land for four harvests immediately preceding Kharif, 1973 shall be offered first right for sale unless an order of ejectment has been passed against him in respect of such land. Even otherwise, a Scheme for Disposal of Un-allotted/Un-occupied/Occupied Evacuee Rural Agricultural Land was promulgated on 19.11.1974 under Section 3 (1) (b) of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 [which Ordinance later on was named as Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975], whereunder an un- allotted land if available unoccupied in subsisting holding of a person within the meaning of land Reforms Regulation, 1972 as enunciated in Chapter I, shall be sold out to him. For ready reference, Chapter I of aforesaid Scheme is reproduced as under:

CHAPTER-I

In this scheme unless the subject or context otherwise requires:-

i) “Un-allotted land” means evacuee land which has not been allotted/confirmed against verified claims or otherwise disposed or under the provisions of Displaced Persons (Land Settlement) Act, 1958, on or before 30.06.1974.

ii) “Occupied land” means evacuee un-allotted land which is in continuous possession of the occupant for four harvests immediately precedings Kharif, 1973.

iii) “Un-occupied land” means evacuee un- allotted land which is not in possession of any person including the land in adverse possession after Kharif, 1971.

iv) “Subsisting holding” means holding of a person within the meaning of land Reforms Regulation, 1972.”

According to the above policy the available unoccupied / unallotted vacant rural agricultural land should be disposed of according to Chapter-IV of aforesaid Scheme, which ordains the disposal of such land through unrestricted open public auction. For ready reference, relevant portion of the Chapter- IV is reproduced as under:-

CHAPTER-IV

“4. All the available un-allotted and un-occupied vacant rural agricultural land will be disposed of by means of un-restricted open public auction according to the following terms and conditions:-

1) Auction will be conducted by a Committee consisting of (1) A.C/EACO/EASO and (2) llaqa Magistrate of the area concerned. Where there is no Ilaqa magistrate any Magistrate Ist Class nominated by the Deputy Commissioner.

2) The highest bid which shall not be below the reserve price may be accepted or rejected by the respective Deputy Commissioner, C.O/S.O without assigning any reason.

(3) An appeal against the orders passed under sub-para (ii) above may be preferred to the Additional Commissioner (Revenue) of the Division within l5-days of the said order.

(4) No person having duty to perform in connection with the auction shall either directly or indirectly bid for it.

(5) No minor will be entitled to bid except through his guardian.

If any person desires to bid on behalf of another he will deposit with the A.C/EACO/ EASO (a) original special power of attorney of (b) a Copy of general power of attorney attested by a Magistrate or an Oath Commissioner.

(6) If two or more persons desire to bid jointly, they will submit in writing their authorized agent holding a power of attorney on their behalf the names and addresses of the persons joining in the bid and will also indicate therein their respective shares in the property to be obtained in auction.

(emphasis supplied)

Further vide Memorandum dated 02.12.1998, a procedure has been described for disposal of the available and likely to be available rural agricultural land. For ready reference, aforesaid referendum is reproduced as under:

No. 1407-98/3594-RL(A)I. Board of Revenue, Punjab, Farid Kot House Lahore. Dated the 02.12.1998.

From

The Board of Revenue: Punjab (Settlement & Rehabilitation) Wing.

To

1) All the Commissioners of Division, in the Punjab;

2) All Additional Commissioners (R) of Divisions, in the Punjab.

3) All Deputy Commissioners, in the Punjab;

4) All Additional Deputy Commissioners (G), in the Punjab

5) All Assistant Commissioners, in the Punjab.

6) All Officers at Headquarters Office, Lahore.

Subject: DISPOSAL OF AVAILABLE AND LIKELY TO BE AVAILABLE RURAL AGRICULTURAL LAND (EVACUEE) IN THE PUNJAB.

Memorandum:

A scheme for the disposal of available and likely to be available rural agricultural land (evacuee) in the Punjab was circulated vide this office circular No. 915-POL/74, dated 19.11.1974. A copy of the Scheme is again enclosed for ready reference. A time schedule for the disposal of the land has been prepared. The available or likely to be available land is categorized as follows:

A) ‘Occupied Land’ where the occupant is in possession of the land four harvests prior to Kharif 1973 and his land holding does not exceed subsistence holding of 12½ acres.

B) ‘Occupied Land’ the occupied land in excess of the subsistence holding and the land occupied not falling under Category ‘A’.

C) ‘Un-Occupied .Land’ which is neither allotted nor occupied by any person.

1. As regards Category “A” the occupant is required under Chapter-II Para 2(ii) of the Scheme to submit his option to the Assistant Commissioner concerned to purchase the said land. The Assistant Commissioner after scrutiny of record will submits report to the Member, Board of Revenue/Chief Settlement Commissioner Punjab through the Deputy Commissioner for approval of sale of land at Rs. 100/P.I.Units.

2. As far as Categories (B) and (C) are concerned, the land is to be disposed of through open auction under Chapter-III Para 3 of the Scheme, by a Committee constituted thereunder. However, an un-authorised occupant is given the right of first purchase on payment of the price equal to the highest bid offered in open auction.

……………

……………

CATEGO RY ‎'B‎AND‎ C’

a) All Assistant Commissioners shall prepare schedule of auction of the land with the approval of the Deputy Commissioner and furnish a copy thereof to the Board of Revenue (S&R Wing), Punjab for information.

b) The schedule will be given wide publicity through advertisement in at least two national “Dailies” and also through other ............... like beat of drum, pasting of notice at Tehsil Headquarters etc.

c) The whole exercise including drawing of schedule, approval of auction, recovery of bid money and implementation in revenue record shall be …… by 30.06.1999 under the Scheme.

…………..

…………..

Sd/- Secretary (Settle: Reh:) Board of Revenue, Punjab Faird Kot House, Lahore.

In addition to the above the Hon’ble Supreme Court of Pakistan in its decision dated 2.1.2015 rendered in C.P. No. 709-L/2009 titled Member (Judicial-V), Board of Revenue/Chief Settlement Commissioner, Punjab & 2 Others vs. Sagheer Muhammad Khan & Others, has set down a sacrosanct principle for disposal of public assets and it has conclusively been settled that after the promulgation of Repealing Act, 1975 the evacuee property can only be disposed of through unrestricted and transparent open auction. The relevant portion thereof is reproduced as under:

“7 .……… According to the current law and arrangements put in place by the Province subsequent to the Repeal Act the property will have to be disposed of through open public auction so that the assets vested in the Province and ultimately in the people of the Province are duly protected. This shall not prevent the Province from proceeding against the respondents or others both for recovery of compensation for occupation and use of the property and for any other action civil or criminal in this case. This petition is converted into appeal and is allowed in the above terms.”

(emphasis supplied)

As the issue of disposal of state land has finally and conclusively been decided by the Hon’ble Apex Court of the country and its decisions have binding effects on all the organs of the state as enshrined in Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. The above mentioned hallmark principle have been clearly laid down by the Hon’ble August Court wherein it is conclusively held that the state asset/land should be disposed of through unrestricted open auction and any order passed by the executive authority/judicial or quasi- judicial forum in contravention of pronouncement of the August Apex Court shall indeed be considered as nullity in the eyes of law. Here in this case the petitioners is admittedly an illegal occupant over the evacuee land, as such, he is not considered entitled for any discretionary relief in constitutional jurisdiction of this Court. The Hon’ble Supreme Court of Pakistan in a case titled as “Shazia Gillani etc. vs. Board of Revenue, Punjab, Lahore through Member Colonies, etc.” (in C.P. No. 732-L of 2016) has held that there is no protection to possession of usurpers of state property vide order dated 25.03.2016 and held as under:

“The discretion of the learned High Court in terms of Article 199 of the Constitution or this Court as per Article 185 of the Constitution is not available for the protection of possession of people who are usurpers of state property. No case has been made out for interference. Dismissed accordingly.”

In another case, the Hon’ble Supreme Court of Pakistan in Civil Petition No. 882-L of 2015 vide order dated 15.03.2017 held as under:

“2. We find that in the light of above circumstances, the learned High Court rightly allowed the writ petition of the respondents and restored possession of the property to them, and correctly dismissed the writ petition of the instant petitioners, who are admitted encroachers of the property and are in unauthorized possession therefore. Resultantly, this petition is dismissed.”

5. Land measuring 3323 Kanal situated in Moza Harsay Noshera was allegedly allotted to Mst. Naseema Begum against Khata RL.II.No. 193 in the year 1964 and her said allotment was cancelled and the said land was resumed in favour of the state on 4.10.1981. Similarly the alleged allotment of the disputed land in favour of Muhammad Younas etc. was also canceled by the Chief Settlement Commissioner vide order dated 31.12.2008 being bogus and land was resumed on 22.01.2009 in favour of the state. The petitioners assert that their predecessors purchased land measuring 48 Acre in the year 1964 from allottee and since then they are occupying possession of the said land. As the very allotment of the allottee has been cancelled as such the possession of subsequent purchaser has no protection of law which extends nil support to the land grabbers and illegal occupants. Reliance is placed on the cases reported as Fazalur Rehman & others vs. Province of Punjab through District Officer (Revenue), Bhakkar & Another (2014 SCMR 1351) and Muhammad Sharif through L.Rs vs. Province of Punjab through District Officer Revenue, Pakpattan (2014 SCMR 334).

6. Admittedly the disputed land is an evacuee land owned by the provincial government and it should be disposed of as per the procedure prescribed in Section 3 of the Evacuee Property & Displaced Persons Laws (Repeal) Act, 1975. The Courts of Law always keep in mind while dealing with the matters relating to public property and public interest. An extraordinary obligation is saddled upon the constitutional Courts to keep abreast itself with law and facts of the case and when certain material facts unearthed then it should decide the matter as per law even without being influenced by respective pleadings of the parties. In this regard, the Hon’ble Supreme Court of Pakistan in a judgment cited as Provincial Government through Collector, Kohat and another versus Shabbir Hussain (PLD 2005 SC 337), has held as under:

“12. Likewise, the learned Presiding Officers are also required to exercise caution when they are dealing with matters relating to public property and public interest of which the Courts of law are the final custodians. It is true that we have never leaned in favour of giving of preferential treatment to the Government departments or agencies but then we are equally obliged, while granting relief, to ensure that public interest is not permitted to be jeopardized and public property is not allowed to be squandered through mere collusion of some representative of a Government agency”.

7. Even if it is presumed that the petitioners had purchased the land from Mst. Nasima Begum, they could not maintained possession of the same as required by second proviso of section 3 of the Evacuee Property and Displaced Persons Law (Repeal) Act, 1975. The petitioners neither challenged the cancellation orders of allotment nor filed application for purchase of the land in question within time rather they remained under illegal possession of land in question till their ejectment. The petitioners are neither owners nor in possession of the land in question. They tried to purchase land measuring 88-kanals under the garb of their purchased land measuring 58-kanals, 18-marlas, vide mutation No. 319 dated 30.11.1964 which had already been resumed in favour of the State, as such, the petitioners cannot be considered in consecutive possession of the land so resumed, as such, they do not fulfill the requirements of section 3 of the Act ibid. Thus, the Chief Settlement Commissioner rightly dismissed the application of the petitioners for purchase of the land in question and concluded that the available evacuee land be disposed of through unrestricted public auction.

8. Another aspect of this case is that admittedly the land in question is a public property which cannot be doled upon any person through private treaty to extend favoritism, nepotism and for undue enrichment of individuals at the resources of public, which are meant for ultimate welfare and betterment of people. Further if the disposal of said land is desired by the concerned authority, the same should be disposed of through unrestricted public auction. Reliance is placed on the judgment decided by the Hon’ble Supreme Court of Pakistan in Civil Petition No. 2022-L of 2010 titled as Hafeez Akhtar Randhawa vs. Member (Colonies), Board of Revenue which is as under:

“We may also add that in re-Suo Motu Case No. 10 of 2009 (2010 SCMR 885) and in a number of subsequent cases this Court has already held that lands, mines, minerals, gas etc. are assets which belong ultimately to the people of Pakistan and the same cannot be doled out at the whims and fancies of state functionaries. In another case titled Arshad Waheed vs. Province of Punjab (PLD 2010 Lahore 510), the Lahore High Court has also reiterated the same view.

This Court in a judgment cited as Arshad Waheed vs. Province of Punjab and others (PLD 2010 Lahore 510) has elaborately dealt with such like matter and has resolved the controversy as under:

“49. The disposal or transfer of public property without public participation is abuse of public trust. Public Property sold or transferred behind closed doors by public functionaries to some select few undermines the venerated role of trusteeship. Good governance is fundamentally pillared on trust and confidence of the people in the government, public institutions and more importantly in the public functionaries at the helm of the affairs. If this public trust is hemorrhaged, the entire edifice of public administration loses its credibility, which weakens governments and discredits democracy.

1. In “Shri Sachidanand Pandey and another vs. The State of West Bengal and others”, (AIR 1987 SC 1109) at p.1133, O. Chinnappa Reddy, J. after considering almost all the decisions on the subject summarized the propositions in the following terms:

“On a consideration of the relevant cases cited at the bar the following propositions may be taken as well-established: State owned or public owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism”.

51. In “Haji T.M. Hassan Rawther v. Kerala Financial Corporation” (AIR 1988 S.C. 157) Jagannatha Shetty speaking for the Supreme Court of India said:--

“The public property owned by the State or by any instrumentality of the State should be generally sold by public auction or by inviting tenders. This Court has been insisting upon that rule, not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities. They should undoubtedly act fairly. Their actions should be legitimate. Their dealings should be above board. Their transactions should be without aversion or affection. Nothing should be suggestive of discrimination. Nothing should be done by them which gives an impression of bias, favoritism or nepotism. Ordinarily, these factors would be absent if the matter is brought to public auction or sale by tenders. That is why the Court repeatedly stated and reiterated that the State owned properties are required to be disposed of publicly. But that is not the only rule. As O.Chinnappa Reddy, J. observed, “that though that is the ordinary rule, it is not an invariable rule.” There may be situations necessitating departure from the rule, but then such instances must be justified by compulsions and not by compromise. It must be justified by compelling reasons and not by just convenience.”

(emphasis supplied)

52. In “Fertilizer Corporation case”, (AIR 1981 SC 344) at p.350 the Court speaking through Chandrachud, C.J., observed:

“We want to make it clear that we do not doubt the bona fides of the authorities, but as far as possible, sales of public property, when the intention is to get the best price, ought to take place publicly. The vendors are not necessarily bound to accept the highest or any other offer, but the public at least gets the satisfaction that the Government has put all its cards on the table.

(emphasis supplied)

53. In “Ram & Shyam Company vs. State of Haryana” (1985 (3) SCC 267), it has been laid down: (vide p.277, para 12)

“….. On the other hand, disposal of public property partakes the character of a trust in that in its disposal there should be nothing hanky panky and that it must be done at the best price so that larger revenue coming into the coffers of the State administration would serve public purpose viz. the welfare State may be able to expand its beneficent activities by the availability of larger funds.….. But where disposal is for augmentation of revenue and nothing else, the State is under an obligation to secure the best market price available in a market economy. An owner of private property need not auction it nor is he bound to dispose it of at a current market price. Factors such as personal attachment, or affinity, kinship, empathy, religious sentiment or limiting the choice to whom he may be willing to sell, may permit him to sell the property at a song and without demur. A welfare State as the owner of the public property has no such freedom while disposing of the public property.”

(emphasis supplied)

1. Reliance is placed on good authority to establish that pubic property cannot be transferred without open procedure of public advertisement, public tender and public auction, unless law provided otherwise. Malik Atta Muhammad and another v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and others (2007 SCMR 178), Mirza Muhammad Arif and others v. Chief Engineer and others (PLD 2009 LAH. 489), Muhammad Irshad and another v. Tehsil Municipal Administration through Tehsil Nazim, Lodhran and 3 others (2006 CLC 1902), Mubashir Iqbal v. Secretary, Excise and Taxation, Government of Punjab, Lahore and 5 others (PLD 2005 Lahore 728), Sardar Sultan Ahmed Khan v. Government of Punjab through Project Director, Department of Agriculture Punjab, Lahore and 4 others (2001 MLD 1013), Petrosin Products Pakistan (Pvt.) Limited vs. Federation of Pakistan through Secretary, Privatization Commission, Ministry of Finance, Government of Pakistan Islamabad and 5 others (2001 CLC 820), “Muhammad Shafique Khan v. Secretary to the Government of Punjab Local Government and Rural Department, Lahore and 2 others” (1996 CLC 2045), Administrator, Municipal Committee, Sahiwal vs. Member Colonies, Board of Revenue, Punjab, Lahore and 2 others (2007 CLC 1858), Messrs Noor Shah Filling Station (Regd.) through Manager (Administration) v. Auqaf Department through Secretary/Chief Administrator Auqaf, Punjab and 4 others (2009 CLC 1148), Shaukat Ali and others v. Government of Pakistan through Chairman, Ministry of Railways and others (PLD 1997 SC 342), Shaukat Ali vs. Secretary, Industries and Mineral Development, Government of Punjab, Lahore and 3 others (1995 MLD 123), “Syeda Shahida Tasleem v. The Province of Punjab and others” (PLD 1995 Lahore 110), “Ali Raza v Chairman, Punjab Cooperative Board for Liquidation, Lahore” (2010 YLR 356), Maqsood Khan and others v. Province of Sindh and others (2007 YLR 28). From the Indian jurisdiction reliance is placed on: Aggarwal & Modi Enterprises Pvt. Ltd. & Another V. New Delhi Municipal Council (AIR 2007 SC 3131), Chenchu Rami Reddy and another v. The Government of Andhra Pradesh and others (AIR 1986 SC 1158), State of Haryana and others v. Jage Ram and others (AIR 1983 SC 1207), M/s. Kasturi Lal Lakshmi Reddy etc. v. The State of Jammu & Kashmir and another (AIR 1980 SC 1992), Ram and Shyam Company, v. State of Haryana and others (AIR 1985 SC 1147), Ramana Dayaram Shetty v. The International Airport Authority of India and others (AIR 1979 SC 1628), Shri Sachidanand Pandey and another v. The State of West Bengal and others (AIR 1987 SC 1109), State of U.P. v. Shiv Charan Sharma and others (AIR 1981 SC 1722), “Fertilizer Corporation v. Union of India” (AIR 1981 SC 344), and Haji T.M. Hassan Rawther vs. Kerala Financial Corporation (AIR 1988 SC 157).

2. Disposal of Public Property without reaching out to the public is a breach of public trust and is therefore facially and ex-facie discriminatory. By giving preference to a select few amounts to treating equals unequally. This offends fundamental right of equality under article 25 of the Constitution.”

9. Learned counsel for the petitioners has failed to point out any perversity, illegality or any jurisdictional defect in the impugned order calling for any interference by this Court in its constitutional jurisdiction.

1. In view of above, this writ petition being devoid of any force is dismissed in limine.

(M.M.R.) Petition Dismissed

PLJ 2020 Lahore 548

Present: Jawad Hassan, J.

MUNEEB TARIQ and another--Petitioners

versus

PUNJAB PUBLIC SERVICE COMMISSION and 2 others--Respondents

W.P. No. 35254 of 2020, decided on 10.8.2020.

Constitution of Pakistan, 1973--

----Art. 199--Issuance of Notification to conduct competitive examinations--Challenge to--Violation of fundamental right--Public interest litigation--Outbreak of corona virus--Duties and functions of Government--Nub of matter in this case is to set aside impugned notification regarding conduct of exams due to prevailing COVID-19--But it is also important that lives of citizens of Pakistan are to be protected by Government which is Fundamental Right guaranteed under Constitution--An outbreak of corona virus disease (COVID-19) caused by 2019 novel corona virus (SARS-CoV2) rapidly spread across world since December 2019, from Wuhan, Hubei Province, China to 165 countries and territories-- World Health Organization (WHO) officially declared it as a public health emergency of international and ultimately as a global pandemic on 11.03.2020--All government departments continued to perform their duties and functions even in lockdown situations, but with strict observance of SOPs, chalked out by NCOC in this regard--Moreover, Courts being judicial organ of State also continued functioning for safeguarding rights of citizens--Meaning thereby during turmoil spell of COVID-19 Government tried its level best to work for betterment and safety of general public--As all State Functionaries, Bodies, Authorities, Courts and other State Departments remained functioning during situation of COVID-19 and nothing was suspended or halted, therefore, mere holding of exams by Respondent-PPSC will not violate fundamental rights of Petitioners--However, for protection of lives of candidates, Respondent No. 1/PPSC is directed to ensure strict observance of SOPs laid down by NCOC and Punjab Government, during examinations--Even otherwise all candidates appearing in competitive PMS exam are also bound to follow internal SOPs for written examination in PPSC--These guidelines comprehensively provide precautions to be taken by candidates and invigilators before and after examination and during conduct of examination as well--Anxiety in people-loneliness and fear of death were prominent problems at initial outbreak of COVID-19, but by grace of Almighty Allah, now situation is altogether different--Presently sharp decline or interruption in Covid-19 has been observed--Government has yet not claimed absolute ending of Covid-19--National and International experts, closely observing all about Covid-19 are unable to give any deadline about complete vanish of turmoil pandemic from earth--For sake of arguments, if exams may be conducted in month of December, again all concerned will have to strictly follow advisories/ guidelines of Government regarding Social-Distance and Sanitization etc. at exam centres--According to PPSC, exams are being held with all safety measures--Clearly, there are no cogent reasons to postpone PMS examination as is sought by petitioners-- Respondent/PPSC to conduct exams as per schedule by strictly following restrictions guided in SOPs and candidates shall also be bound to obey SOPs.

[Pp. 551, 552, 554 & 555] A, B, C, H & I

2020 SCMR 987

Constitution of Pakistan, 1973--

----Arts. 4, 5(2) & 9--Inalienable rights--Right to life--Obligations-- Doctrine of sovereignty--It is worth noticing that life of every citizen of Pakistan has to be protected under Article 9 of Constitution which clearly states that “no person shall be deprived of life or liberty save in accordance with law.” Therefore, argument of counsel for Petitioner to this extent is adequate--Undoubtedly under Article 4 of Constitution, Petitioners have inalienable right to be treated in accordance with law but this Article has to be read with Article 5 of Constitution, which mentions that it is inviolable obligation of every citizen to obey command of Constitution, Law and Policies made by Government--Word “inviolable” used in Article 5(2) of Constitution means that it is never to be broken and infringed-- In order to secure fundamental rights, every citizen has to adhere to SOPs issued from time to time by Government which are binding on them under Doctrine of Sovereignty.

[P. 553 & 554] D, E, F & G

2012 SCMR 1784 and 2020 CLC 836.

Mian Asif Mehmood, Advocate with Petitioner No. 1.

Mr. Ishtiaq Ahmad Khan, Additional Attorney General for Pakistan.

Ms. Saida Malik, Assistant Attorney General for Pakistan.

Barrister Muhammad Umair Khan Niazi, Additional Advocate-General on Court’s call.

Assisted by: Shafqat Abbas Mighiana Civil Judge/Research Officer, LHCRC.

Date of hearing: 10.8.2020.

Order

“This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”

Winston Churchill

The Petitioners through this writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) have impugned the Notification dated 06.08.2020 (the “Impugned Notification”) issued by the Respondent No. 1/Punjab Public Service Commission, Lahore (the “PPSC”), whereby the date of Punjab Management Services (the “PMS”) competitive examinations has been announced as 22.08.2020 instead of December, 2020.

1. The Petitioner No. 1, who is an Advocate has filed this writ Petition by relying on the judgments of this Court cited as “Shiekh Asim Farooq v. Federation of Pakistan and others” (PLD 2019 Lahore 664) and “Muhammad Ahmad Pansota and others v. Federation of Pakistan and others” (PLD 2020 Lahore 229), wherein it has been held that public interest litigation was a powerful tool for individuals and groups to combat illegalities, injustice and social ills; it promoted and protected the larger public interest in case of violation of any Fundamental Right.

2. Learned counsel for the Petitioners contends that the Petitioners were enrolled to appear in written examination of PMS (5-A/2020) to be held by the Respondent No. 1/PPSC. Further states that the aforesaid exams are always held in December of every year but the Respondent No. 1/PPSC videimpugned notification wrongly announced the date of examination as 22.08.2020 and onward. Adds that all the Educational/Academic Institutions and Book depots remained closed due to pandemic Coronavirus disease (COVID-19) under the National Action Plan launched by the Government of Pakistan, therefore, the Petitioners could not prepare themselves for such exams. Further states that the COVID-19 is still increasing and affecting the lives in Lahore and due to not observing the Standard Operating Procedures (the “SOPs”) issued by the National Command and Operation Centre (NCOC) there is danger to the lives of the Petitioners, therefore, the issuance of impugned notification is clear violation of SOPs. Further states that the Petitioners approached the Respondents to conduct the exams as per routine but Respondent No. 1 is not postponing the exams, which infringes the fundamental rights of the Petitioners guaranteed under the Constitution. Lastly submitted, that the impugned notification may be suspended and examination date be also extended.

3. When confronted to the maintainability of this writ Petition because all the State Functionaries, Bodies, Authorities, Courts and other State Departments remained functioning during the entire situation of COVID-19 by adopting the SOPs and nothing was suspended or halted, learned counsel could not satisfy the Court but requested that the date of exams be extended and the Respondent-Department be directed to follow the SOPs during the exams.

4. Learned Law Officers also objected to the maintainability of this Petition and submitted that Corona virus cases have witnessed massive decline in Pakistan in recent days after which the Government of Pakistan on recommendations of the NCOC has decided to end the lockdown from today (i.e. 10.8.2020-Monday) reopen the country i.e. Public Transport, Trains, Air Travel, Restaurants, Theatres, Cinemas, Playgrounds, Shrines, Metro, Gyms, Parks, Tourist Attractions, Market and Malls, etc.

5. Arguments Heard. Record Perused.

7. Nub of the matter in this case is to set aside the impugned notification regarding the conduct of exams on 22.08.2020 due to prevailing COVID-19. But it is also important that lives of citizens of Pakistan are to be protected by the Government which is the Fundamental Right guaranteed under the Constitution.

8. Brief facts are that an outbreak of corona virus disease (COVID-19) caused by the 2019 novel corona virus (SARS-CoV2) rapidly spread across the world since December 2019, from Wuhan, Hubei Province, China to 165 countries and territories. The World Health Organization (WHO) officially declared it as a public health emergency of international concern on 30.01.2020, and ultimately as a global pandemic on 11.03.2020.

1. Pakistan was unprepared for a massive pandemic of COVID-19. After declaration of COVID-19 as a pandemic, the Government of Pakistan accorded it highest priority and a meeting of the National Security Committee (NSC) was held to deal with the threat of COVID-19. A detailed Action Plan was issued by the Government of Pakistan. It provided for the background, the steps to be taken and the short-term, medium-term and long-term measures to be undertaken. Detailed SOPs for check-up at all points of entry into the country were also issued. The matter was treated as that of national security issue.

2. Meanwhile, the Federal Government established a National Coordination Committee (NCC), to formulate and implement a comprehensive strategy to stop the transmission of the COVID-19 and mitigate its consequences. Decision to form National Coordination Committee was taken during the NSC meeting. NCC comprised of Federal Ministers concerned, Chief Ministers, Surgeon General of Pakistan Army, and representatives of DG ISI, DG ISPR as well as DG military operations. The NCC designated the National Disaster Management Agency (NDMA) as the leading operational agency. In each province the Chief Ministers convened task forces to coordinate the response, with the Provincial Disaster Management Agencies (PDMA) as the leading provincial operational agency.

3. COVID-19 Pandemic obligated the Government to come up with a new controlling institution namely “National Command & Operations Center” (NCOC), which later on emerged as an example of representative governance. NCOC was established on 31.03.2020 and functioning as the “nerve center for timely decision-making” on COVID-19. NCOC acts as the implementation arm of the NCC, the government’s lead agency in the anti-COVID-19 campaign. One of NCOC’s key functions is to ensure effective coordination between Federal and Provincial Governments to deal with the pandemic. Now, NCOC is working as one-window operation to collaborate and articulate the national efforts against COVID-19, enhance informed decision-making and ensure implementation of decisions of the NSC and NCC.

12. All the government departments continued to perform their duties and functions even in the lockdown situations, but with strict observance of SOPs, chalked out by NCOC in this regard. Moreover, the Courts being the judicial organ of the State also continued functioning for safeguarding the rights of the citizens. Meaning thereby during turmoil spell of COVID-19 the Government tried its level best to work for the betterment and safety of general public.

1. Learned Full Bench of Hon’ble Supreme Court of Pakistan in the recent judgment cited as “Suo Motu Action Regarding Combating the Pandemic of Corona Virus (COVID-19)” (2020 SCMR 987) has observed that “looking at the past history of country, where business activities of private entrepreneurs were interfered with by the government, such entrepreneurs lost faith in the system and packed up and moved to some other destinations in the world, where they considered their investment to be more safe and profitable; that if the business and industries remained closed for a long time, their revival became more and more doubtful, and in case they were not revived, millions of workers would be on streets and the Government may be faced with a human disasters and calamity of such a magnitude that to overcome it, may become next to impossible.”

14. It is worth noticing that life of every citizen of Pakistan has to be protected under the Article 9 of the Constitution which clearly states that “no person shall be deprived of life or liberty save in accordance with law.” Therefore, the argument of learned counsel for the Petitioner to this extent is adequate.

15. Undoubtedly under Article 4 of the Constitution, the Petitioners have inalienable right to be treated in accordance with law but this Article has to be read with Article 5 of the Constitution, which mentions that it is inviolable obligation of every citizen to obey command of the Constitution, the Law and the Policies made by the Government. The Article 5(2) of the Constitution states that:

“Obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan.”

16. The word “inviolable” used in Article 5(2) of the Constitution means that it is never to be broken and infringed. In the case of President Balochistan High Court Bar Association and others versus Federation of Pakistan and others (2012 SCMR 1784), august Supreme Court of Pakistan has held that “to be loyal to the State is the basic duty of all citizens and they have to be obedient to the Constitution and the law, wherever they may be. Thus, adherence to the Constitution and the Law by the citizens is mandatory. Non-compliance of the Constitution and the Law makes a citizen liable for action, in accordance with law”. It would also include principles of natural justice, procedural fairness and procedural propriety. Laws are always made not to be violated but to be obeyed. In Suo Motu Case No. 15 of 2009 (PLD 2012 SC 610) august Supreme Court of Pakistan held that it is expected from every citizen of Pakistan that he shall be loyal to the State and the basic duty of every citizen is to be obedient to the Constitution and law as ordained under Article 5 of the Constitution. Respect for law is never maintained by force but by the appreciation of the reasons, appreciating its veracity and through obedience. Unfortunately, sometimes, the law falls in crisis due to misunderstanding or lack of vision.

17. In order to secure fundamental rights, every citizen has to adhere to the SOPs issued from time to time by the Government which are binding on them under the Doctrine of Sovereignty. This Court in the recent judgment titled, Mst. Fatima Faryad etc. v. Government of Punjab etc. (2020 CLC 836) held that:

“under the Doctrine of Sovereignty they are bound to adhere to their commitment in the light of dictum laid down in the case of Dewan Salman Fibber Ltd. and others v. Federation of Pakistan, through Secretary, M/o Finance and others (2015 PTD 2304) whereby this Court while laying emphasis on the impotence of the Government adhering to severing commitments made by it, whether in the form of the statutory orders or notification issued by it or in the shape of policies announced by it held that “the commitments made on behalf of the Government of the Islamic Republic of Pakistan should neither be lightly disregarded nor deliberately ignored. The orderly development of a civilized society requires that citizens should be entitled to place implicit faith and confidence on representations which are made by or on behalf of the duty constituted governmental authorities. The importance of this underlies the sustained thrust towards the industrialization of the country in which both the nationals of Pakistan as well as nationals of foreign countries should have complete confidence that official commitments will be duly honored and acted upon in letter and spirit.”

This view has further been fortified by a learned Division Bench of this Court in the judgment reported as National Bank of Pakistan v. Iftikhar Rasool Anjum and others (2017 PLC (C.S.) 453), which has been upheld by the Hon’ble Supreme Court of Pakistan in the case of “Bahadur Khan and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and others” (2017 SCMR 2066).

18. As all the State Functionaries, Bodies, Authorities, Courts and other State Departments remained functioning during the situation of COVID-19 and nothing was suspended or halted, therefore, mere holding of exams on 22.08.2020 by the Respondent-PPSC will not violate the fundamental rights of the Petitioners. However, for the protection of lives of the candidates, the Respondent No. 1/PPSC is directed to ensure strict observance of SOPs laid down

by NCOC and the Punjab Government, during the examinations. Even otherwise all the candidates appearing in competitive PMS exam are also bound to follow the internal SSOPs for the written examination in PPSC. These guidelines comprehensively provide precautions to be taken by the candidates and invigilators before and after the examination and during the conduct of examination as well. Anxiety in people-loneliness and the fear of death were the prominent problems at initial outbreak of COVID-19, but by the grace of Almighty Allah, now the situation is altogether different. Presently sharp decline or interruption in Covid-19 has been observed. Government has yet not claimed the absolute ending of Covid-19. National and International experts, closely observing all about the Covid-19 are unable to give any deadline about complete vanish of turmoil pandemic from the earth. For the sake of arguments, if exams may be conducted in the month of December, again all the concerned will have to strictly follow the advisories/ guidelines of Government regarding Social-Distance and Sanitization etc. at the exam centres. According to PPSC, exams are being held with all safety measures. Clearly, there are no cogent reasons to postpone the PMS examination as is sought by the petitioners.

19. Consequently the writ Petition is disposed of with the direction to the Respondent/PPSC to conduct the exams as per schedule by strictly following the restrictions guided in the SOPs and the candidates shall also be bound to obey the SOPs.

(M.M.R.) Order accordingly

PLJ 2020 Lahore 555 (DB) [Rawalpindi Bench Rawalpindi]

Present:Abid Aziz Sheikh and Shahid Jamil Khan, JJ.

HABIB BANK LTD.--Appellant

versus

ZAWAR HUSSAIN SHAH--Respondent

R.F.A. No. 26 of 2012, decided on 4.11.2020.

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

----Ss. 9(2) & 22--Bankers Book Evidence Act, 1891, S. 2(8)--Suit for recovery--Dismissed--Statement of account--Non-availability of date and name of manager of bank on statement of account--Non-speaking judgment--Challenge to--Suit filed by Bank was merely dismissed for reason that date and name of manager was not available on statement of account, hence not certified under Act--No finding has been given by Banking Court on leave application filed by respondent--Therefore, on face of it, impugned judgment is non-speaking and not sustainable--Appeal allowed.

[Pp. 556 & 557] A, B & C

Ms. Moona Hussain, Advocate for Appellant-Bank.

Raja Haseeb Sultan, Advocate for Respondent.

Date of hearing: 4.11.2020.

Order

In this appeal, the appellant has challenged the judgment and decree dated 29.11.2011, passed by the learned Judge, Banking Court, Rawalpindi, whereby the suit filed by the appellant-Bank was dismissed being not maintainable on the sole ground that the statement of account attached with the plaint is not dated and name of the Manager is also not available there.

2. Learned counsel for the appellant-Bank submits that as per law settled by the learned Division Bench of this Court in the case of Mst. Tasleem Fatima and others versus Bank of Punjab and others (2017 CLD 552) and the learned Single Bench of this Court in the case of The Bank of Punjab through Branch/Chief Manager versus Messrs Khan Unique Developers Pvt. Ltd. through Chief Executive Officer and 9 others (2016 CLD 29), the statement of account, which is an electronic computer generated, does not need any signature or certificate as per Section 2(8) of the Banker’s Book Evidence Act, 1891 (Act).Further submits that the learned Banking Court did not even decide the fate of the leave application before dismissing the suit of the appellant-Bank.

1. Learned counsel for the respondent, on the other hand, supported the impugned judgment and submits that as the requirement of Section 9(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance)was not fulfilled, therefore, the suit was rightly dismissed.

4. Heard. Perusal of the impugned judgment shows that the suit filed by the appellant-Bank was merely dismissed for the reason that the date and name of the Manager was not available on the statement of account, hence not certified under the Act. However, the effect of the Electronic Transactions Ordinance, 2002 (Ordinance), which is discussed in the afore-noted judgments, was not considered in the impugned judgment. Further no finding has been given by the

learned Banking Court on the leave application filed by the respondent. Therefore, on the face of it, the impugned judgment is non-speaking and not sustainable. Accordingly, this appeal is allowed and the impugned judgment and decree is set aside. The matter is remitted back to the learned Banking Court to decide the leave application of the respondent alongwith question of maintainability of main suit through a reasoned and speaking order.

1. As the matter pertains to the year 2010, learned Banking Court shall preferably decide the same within a period of four months strictly in accordance with law.

(Y.A.) Appeal allowed

PLJ 2020 Lahore 557

Present: Muhammad Sajid Mehmood Sethi, J.

SHEHZAD AHMAD--Petitioner

versus

ASAD NIAZ & 2 others--Respondents

W.P. No. 24078 of 2020, decided on 22.9.2020.

Constitution of Pakistan, 1973--

----Art. 199--Punjab Rented Premises Act, 2009, S. 15--Eviction petition--Amounts of pagri paid by petitioner--Eviction beyond pleadings--Question of law & facts--Jurisdiction--Challenge to--Sole ground urged by respondent was illegal construction by petitioner in rented shops whereas eviction order has been passed on ground of expiry of tenancy period--Respondent has neither raised such ground in ejectment petition nor sought permission to amend ejectment petition--Moreover, Courts below had also not opted to confront such ground to petitioner in order to seek his defence--Purpose of pleadings is' to let opposite-party know, what it has to meet--Respondent on basis of facts averred in ejectment petition had to establish cause of action and petitioner has to prove his defence--Moreover, a decision can neither be based upon pleas not raised in pleadings nor upon pleas raised but not proved--Court cannot travel beyond pleadings and it had no jurisdiction to decide a case, which had not been put forward by any party in pleadings--Undeniably, petitioner in his application for leave to contest raised questions, inter-alia, that subsequently agreements were executed, whereby respondent received specific amount as Pagri, with settlement that respondent would not get vacated shops in question; that agreement clearly stated that shop also carried basement and washroom; that petitioner was also authorized to alienate shops however, respondent was entitled to get 25% of amount received in excess of Pagri amount; and that if petitioner intended to vacate rented shops, respondent was bound to pay agreed percentage of prevailing market good will to him--In view of petition is allowed. [Pp. 559 & 560] A, B & D

2012 YLR 1580 and 2000 MLD 2007

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

----S. 24-A--Non-speaking contemplative order--Petitioner's contentions are though mentioned in impugned decisions but same have not been properly addressed--Hence, impugned decisions are non-speaking within contemplation of Section 24-A of General Clauses Act, 1897 [P. 560] C

M/s. Rana Zia Abdul Rehman, Muhammad Shakeel, Muhammad Aamir Javed Bhatti and Mian Nawab-ur-Rehman, Advocates for Petitioner.

Mr. Muhammad Usman Chaudhry, Advocate for Respondent No. 1.

Date of hearing: 22.9.2020.

Order

Through instant petition, petitioner has assailed vires of orders dated 04.02.2020 and 17.03.2020, passed by learned Special Judge (Rent) and Additional District Judge, Lahore, respectively, whereby ejectment petition filed by respondent No. 1 was accepted concurrently.

1. Brief facts of the case are that respondent No. 1 filed ejectment petition regarding Shops No. 4 & 5, located in Ghulam Ali Medicine Market, Lohari Gate, Lahore, on the basis of Rent Agreement dated 01.03.2006. It was averred that respondent No. 1 visited the shops on 12.02.2019 and found that petitioner constructed bathroom and basement and secured an illegal water connection, thus, violated the terms and conditions of the rent agreement. Petitioner tendered appearance and filed application for leave to contest along with reply to ejectment petition. After hearing arguments of both sides, learned Special Judge (Rent) dismissed application for leave to contest and accepted the ejectment petition, directing petitioner to vacate the shops in question within two months, vide order dated 04.02.2020. Feeling aggrieved, petitioner filed appeal before learned Additional District Judge, which was dismissed vide order dated 17.03.2020. Hence, instant petition.

2. Learned counsel for petitioner submits that eviction petition has straightaway been accepted without dilating upon pleadings and questions of law and facts raised in the application for leave to contest. He adds that respondent No. 1 sought eviction only on the ground that petitioner allegedly violated terms and conditions of rent agreements but eviction order has been passed on the ground of expiry of lease agreement. He further submits that petitioner has paid huge amounts of Pagri but this aspect has not been taken into consideration while passing impugned decisions. In the end, he submits that impugned decisions are not sustainable in the eye of law.

3. Conversely, learned counsel for respondent No. 1 defends the impugned decisions. When confronted that ejectment petition has been allowed on a ground not agitated in averments, he submits that respondent No. 1 also prayed for any other relief, therefore, impugned decisions are within the scope of contents of ejectment petition.

4. Heard. Available record perused.

6. Perusal of averments of ejectment petition shows that sole ground urged by respondent No. 1 was illegal construction by petitioner in rented shops whereas eviction order has been passed on the ground of expiry of tenancy period. Respondent No. 1 has neither raised this ground in the ejectment petition nor sought permission to amend the ejectment petition. Moreover, learned Courts below have also not opted to confront this ground to petitioner in order to seek his defence. Purpose of pleadings is' to let the opposite-party know, what it has to meet. Respondent No. 1 on the basis of facts averred in ejectment petition had to establish the cause of action and petitioner has to prove his defence. Moreover, a decision can neither be based upon the pleas not raised in the pleadings nor upon pleas raised but not proved. The Court cannot travel beyond the pleadings and it had no jurisdiction to decide a case, which had not been put forward by any party in the pleadings. Reference can be made to Ehtezaz Asghar and another v. Ch. Muhammad Sajawal and 2 others (2012 YLR 1580) and Abdul Azizullah and others v. Anjuman Ansa Ashria and Heliyan-eNah Dagh (Regd.) and others (2000 MLD 2007).

7. Undeniably, petitioner in his application for leave to contest raised questions, inter-alia, that subsequently agreements dated 02.11.2006 were executed, whereby respondent No. 1 received Rs. 19,00,000/- for shop No. 4 and Rs. 23,00,000/- for shop No. 5 as Pagri, with settlement that respondent No. 1 would not get vacated the shops in question; that agreement dated 02.11.2006 clearly stated that shop No. 5 also carried basement and washroom; that petitioner was also authorized to alienate the shops in question, however, respondent No. 1 was entitled to get 25% of the amount received in excess of aforesaid Pagri amount; and that if petitioner intended to vacate the rented shops, respondent No. 1 was bound to pay agreed percentage of prevailing market good will to him.

8. Perusal of impugned decisions shows that some of the petitioner's contentions are though mentioned in impugned decisions but the same have not been properly addressed by learned fora below. Hence, impugned decisions are non-speaking within the contemplation of Section 24-A of the General Clauses Act, 1897.

9. In view of the above, this petition is allowed. Consequently, application petitioner's application for leave to contest is allowed and ejectment petition shall be decided afresh within a period of 06-months and if parties desire to amend their pleadings by adding fresh grounds, power to this extent shall be liberally exercised in accordance with law.

(M.M.R.) Petition allowed

PLJ 2020 Lahore 560 (DB)

Present: Shahid Waheed and Ch. Muhammad Iqbal, JJ.

Khawaja MUHAMMAD NAYYER FARID, ADVOCATE--Appellant

versus

PAKISTAN BAR COUNCIL through Secretary and 4 others--Respondents

I.C.A. No. 18861 of 2019, heard on 14.10.2020.

Law Reforms Ordinance, 1972--

----S. 3--Legal Practitioners and Bar Councils Act, 1973, Ss. 4, 5-A, 7, 11-A, 13(i), 26(c)(iii), 26(u), 55(1a), (1b), 55(n) & 55(v) Constitution of Pakistan, 1973, Art. 199--Prayer to declare amendments as void--Constitutional petition--Dismissed--Challenge to--Domains of each organ defined in Constitution of Pakistan--Judicial review--Jurisdiction--Fundamental rights--Although Courts have jurisdiction under judicial review to strike down any legislative enactment on litmus test of constitution, however, such power has to be exercised sparingly with a great deal of care and caution--Constitutional court has sworn oath to uphold, preserve and protect Constitution and also to enforce Constitution as Supreme Law of country--It is settled law that where statute is not ex facie repugnant to fundamental rights but is capable of being so administered it cannot be struck down unless party challenging it can prove that it has been actually so administered.

[P. 561 & 562] A & B

PLD 1999 SC 1026, 2015 SCMR 1739, 1991 MLD 2622.

Appellant in person.

Mr. Makhdoom Hassan Nawaz, Advocate for Respondent No. 1

Mr. Abid Hussain, Assistant Attorney General for Pakistan, for Respondents No. 2 & 3

Date of hearing: 14.10.2020.

Judgment

Ch. Muhammad Iqbal, J.--This Intra Court Appeal under Section 3 of the Law Reforms Ordinance, 1972 is directed against the order dated 08.03.2019, passed by the learned Single Judge in Chamber whereby Writ Petition No. 13725/2019 filed by appellant was dismissed being not maintainable.

1. The appellant challenged the amendments in Sections 4, 5-A, 7, 11-A, 13(i), 26(c)(iii), 26(cc), 55(1a), (1b), 55 (n) & 55 (v) "made in the Legal Practitioners and Bar Councils Act, 1973 promulgated through Amendment Act, 2018 with the prayer to declare the said amendments as void, carried out with mala fide intention and ulterior motives through Writ Petition No. 13725/2019 which was dismissed in limine being not maintainable by the learned Single Judge in Chamber vide impugned order dated 08.03.2019.

2. We have heard the arguments of appellant and learned counsel for the respondents and have gone through the record with their able assistance.

4. Fortunately we are blessed with a written constitution of Pakistan in which the domains of each organ of the state i.e. legislature, executive and judiciary has manifestly been defined. In the trichotomy of powers the prime function of the legislature is to make law, introduce amendments or rescind certain enactments as per social needs. The second component or pillar is the executive/Government which executed such law and the third pillar of the state is the judiciary which has the power of judicial review. Although the Courts have jurisdiction under judicial review to strike down any legislative enactment on the litmus test of constitution, however, such power has to be exercised sparingly with a great deal of care and caution. The constitutional court has sworn oath to uphold, preserve and protect the Constitution and also to enforce the Constitution as the Supreme Law of the country. Precisely following are the rules which must be applied in discharging this duty to declare any law unconstitutional:

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

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

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

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

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

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

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

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

ix. Mala fides will not be attributed to the Legislature.

5. The National Assembly of Pakistan made amendments in the Legal Practitioners and Bar Councils Act, 1973 through the Legal Practitioners and Bar Councils (Amendment) Act, 2018 and a challenge has been made to said legislation merely on the basis of non-consultation with the Provincial Bar Association prior to such amendment which lower the dignity of Provincial Bar Associations and being a member of Bar valuable rights of the appellant has been infringed. This assertion of the appellant in itself is not fair ground for declaring the impugned amendments in the Act ibid against the Constitution of the Islamic Republic of Pakistan, 1973. It is settled law that where the statute is not ex facie repugnant to fundamental rights but is capable of being so administered it cannot be struck down unless the party challenging it can prove that it has been actually so

administered. Reliance in this regard is placed on cases cited as Messrs East and West Steamship Company Vs. Pakistan [PLD 1958 Supreme Court (Pak.) 41], Federation of Pakistan and others Vs. Shaukat Ali Mian and others (PLD 1999 SC 1026), Lahore Development Authority through D.G. and' others Vs. Ms. Imrana Tiwana and others (2015 SCMR 1739), Messrs Sui Southern Gas Company Ltd. and others Vs. Federation of Pakistan and others (2018 SCMR 802) and Mrs. Benazir Bhutto Vs. The Federation of Pakistan and others (1991 MLD 2622).

1. The learned Single Judge in Chambers, keeping in view the aforesaid circumstances of the case, rightly dismissed the constitutional petition filed by the appellant which does not require any interference.

2. In view of above, we see no merit in this appeal which is hereby dismissed with cost of Rs. 20,000/- to be deposited with the High Court Bar Dispensary.

(M.M.R.) Appeal dismissed

PLJ 2020 Lahore 563[Rawalpindi Bench, Rawalpindi]

Present: Sadiq Mahmud khurram, J.

Syed AMJAD HUSSAIN SHAH--Petitioner

versus

ALI AKASH alias ASIMA BIBI and 5 others--Respondents

W.P. No. 1421 of 2020, decided on 14.9.2020.

Constitution of Pakistan, 1973--

----Arts. 9 & 199--Criminal Procedure Code, (V of 1898), S. 491--Illegal detension--Jurisdiction--Protection of life--Right to liberty--Gender of--Recalling order of ECL--Fundamental right--Opportunity of hearing--Direction to--It is trite that Courts are guardians of liberty of citizens and under Constitution are bound to protect such fundamental right of citizens of State--There is no cavil that object and purpose of establishing shelter homes (Dar-ul-Amans) throughout country is to provide protection to oppressed or homeless ladies and to provide them with shelter when they feel insecure with their family members or in society--When a woman makes a prayer for security to her life, she can be lodged at "Dar-ul-Aman" but still woman has right to make a prayer at any stage to Superintendent of "Dar-ul-Aman" or to competent Court on whose order she has been sent to "Dar-ul-Aman" to release her and restore her right of liberty--In such a course, she cannot be further kept in "Dar-ul-Aman" under law of land--Mst. Neha Ali, Respondent No. 6, is admittedly sui juris and, therefore, she cannot be detained by any person against her wishes--There is no law that a female on mere ground of her sex must invariably be treated as a person under some sort of disability--Petitioner and his family members are directed not to cause any harassment to Mst. Neha Ali--It is observed that Mst. Neha Ali, admittedly being sui juris, is competent to lead a life of her choice and no restraint can be imposed on her even at instance of her father or brother--Observations and findings with regard to marriage of Mst. Neha Ali, and Ali Akash alias Asima Bibi, as contained in order passed by ASJ Taxila, District Rawalpindi, to extent of his observations regarding marriage of Mst. Neha All, and All Akash alias Asima Bibi, were unwarranted and are held to be of no legal value being beyond scope of application before him--Marriage and gender of Ali Akash alias Asima Bibi, are concerned, same cannot be resolved in these proceedings--Petitioner is at liberty to agitate same before proper forums, either before Family Court or if there is any criminal case registered according to version of petitioner, then in criminal case proceedings--If petitioner approaches concerned forum, such forum shall attend and resolve proposition without taking any influence from this order--Order of this Court whereby it was directed to place name of Ali Akash alias Asima Bibi--In Exit Control Lists, is recalled--Federal Government shall be at liberty to proceed in matter of placing name of Ali Akash alias Asima Bibi, Respondent No. 1--In Exit Control Lists in accordance with law and if need be. [Pp. 568, 569, 570 & 572] A, B, C, D & E

2013 SCMR 1484, 1973 SCMR 577 and PLD 2004 SC 219.

M/s. Raja Haseeb Sultan and Raja Amjad Mahmood, Advocates for Petitioner.

Nemo for Respondent No. 1

Mr. Asad Jamal, Advocate for Respondent No. 6

Mr. Mujeeb-ur-Rehman Kiyani, Additional Advocate General.

Mr. Qaisar Abbas Shah, Assistant Advocate General for Respondent.

Date of hearing: 14.9.2020.

Order

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 491 of the Code of Criminal Procedure, 1898 the following prayer has been made by the petitioner:--

"It is, therefore respectfully prayed that by keeping the above circumstances, the instant Writ Petition, may kindly be accepted and allowed, while declaring the impugned order in question dated 30.06.2020 passed and issued by Mr. Muhammad Azeem Akhtar, Additional Session and District Judge Taxila, District Rawalpindi, is against the law and facts of the case without lawful justification and cogent reason, improper without affording proper hearing of petitioner and also void ab inito as well as arbitrary in nature and same ordered to be set aside/re-called being not maintainable and sustainable in the eyes of law while restoring the custody of detenue daughter namely Syed Neha Ali, aged about 16- years, by way of issuing direction to recovered (sic) the above detenue daughter namely Syeda Neha Ali, from the illegal, and improper detention and custody of respondents, particularly Respondent No. 1, through bailiff of Court, or S.H.O. Police Station Taxila, (Respondent No. 4), District Rawalpindi, and ordered to be produced the above detenue before this Honourable Court and further order to handed over the same to the petitioner, for the interest of justice, accordingly.

It is further prayed to this effect that act of respondents by the keeping the above circumstances, may kindly order to be declaring (sic) totally against the law and facts of the case, without lawful justification and cogent reason, without lawful process and fall within the ambit of criminal act of fraud, accordingly.

Any other relief which, this Honourable Court, deems fit and proper regarding production of detenue along with report of bailiff of Court and further statement of detenue order to be recorded, and an criminal case also order to be registered against the culprits/respondents, for the interest of justice, accordingly."

1. The brief facts of the case as advanced by the petitioner are that his daughter namely Neha Ali (Respondent No. 6), was seduced into marriage with Ali Akash alias Asima Bibi, Respondent No. 1 despite the assertion that the said Ali Akash alias Asima Bibi was a female. It has been further submitted by the petitioner that Ali Akash alias Asima Bibi, Respondent No. 1 filed a petition seeking custody of Neha Ali (Respondent No. 6) which petition, as filed by Ali Akash alias Asima Bibi, Respondent No. 1 was allowed by the learned Additional Sessions Judge Taxila, District Rawalpindi vide his order dated 30.06.2020 and Neha Ali, Respondent No. 6 was allowed to accompany Ali Akash alias Asima Bibi, Respondent No. 1, with an observation that Ali Akash alias Asima Bibi, Respondent No. 1 was the husband of Neha Ali, Respondent No. 6.

2. During the course of the proceedings of this petition, Neha Ali, the alleged detenue, Respondent No. 6, was directed to appear before the Court who entered an appearance on 15.07.2020 and this Court, vide order passed on the same day, directed that the gender of Ali Akash alias Asima Bibi, Respondent No. 1 be determined by a medical board to be constituted by M.S DHQ, Rawalpindi. Then vide order dated 05.08.2020 non-bailable warrants of arrest were issued for the appearance of Ali Akash alias Asima Bibi, Respondent No. 1 and vide order dated 07.08.2020 this Court directed to place the name of Ali Akash alias Asima Bibi, Respondent No.

3. In the Exit Control Lists and directed to a block the computerized national identity card (CNIC) of the Respondent No. 1. Furthermore, vide the same order dated 07.08.2020, Neha Ali, the alleged detenue, Respondent No. 6, was directed to be lodged at Dar-ul-Aman Rawalpindi till further orders. On 07.09.2020, this Court directed the Superintendent Dar-ul-Aman Rawalpindi to produce Neha Ali, the alleged detenue, Respondent No. 6, before the Court today. Ali Akash alias Asima Bibi, Respondent No. 1 despite the issuance of non-bailable warrants of arrest, did not further join the proceedings of this petition.

4. In compliance of the order of this Court dated 07.09.2020 Neha Ali, the alleged detenue, Respondent No. 6, has been produced before the Court by the Superintendent Dar-ul-Aman Rawalpindi. According to the Superintendent Dar-ul-Aman Rawalpindi Neha Ali, the alleged detenue, Respondent No. 6, was not allowed to meet either party or any representative of either party during her stay at the Dar-ul-Aman Rawalpindi. Mst. Neha Ali, Respondent No. 6 submits that she being sui juris had contracted the marriage of her own free will and consent with Ali Akash, Respondent No. 1, believing him to be of male gender however since then divorce has been pronounced and finalized between the former spouses and now she has no relationship with Ali Akash alias Asima Bibi, Respondent No. 1. Neha Ali, Respondent No. 6 further submits that the marriage between her and Ali Akash, Respondent No. 1 stands dissolved. She further submits that she being sui juris, wants to reside at a place of her own choice and continue with her studies. She submits that she is facing clear and present danger to her life at the hands of her father and brothers, hence she has no desire to live with them rather seeks protection in this regard.

5. Learned counsels for the petitioner argued in line with their prayer in the instant petition and according to the facts narrated in the same and submitted that the custody of Neha Ali, Respondent No. 6, be handed over to the petitioner, her father or that she be lodged at Dar-ul-Aman.

6. Learned counsel for Respondent No. 6, while refuting the contentions of the learned counsel for the petitioner, has argued that the instant petition is not maintainable under the law and is devoid of merits.

7. The learned Additional Advocate General and the learned Assistant Advocate Generalargued that under Section 491, Cr.P.C. this Court need not embark upon an inquiry to the veracity or genuineness of Nikahnama or marriage or divorce, but they concede that being a sui juris, Neha Ali Respondent No. 6 may be set at liberty and she cannot be detained or forced to live in Dar-ul-Aman against her wishes. The learned Additional Advocate General, however, stressed that Neha Ali Respondent No. 6 be not allowed to reside at Dastak, a shelter home at Lahore and a project of AGHS Legal Aid Cell, a legal aid organization cofounded by Ms. Hina Jilani.

8. I have heard the learned counsels for the parties and perused the record with their able assistance.

9. The High Court has two-fold jurisdiction under Section 491 of the Code of Criminal Procedure 1898; (1) to deal with a person within its appellate criminal jurisdiction according to law; and (ii) to set him/her at liberty if he/she is illegally or improperly detained. Section 491 of the Code of Criminal Procedure 1898 provides as under:--

10. Power to issue directions of the nature of a habeas corpus. (1) Any High Court may, whenever it thinks fit, direct

a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law;

(b) that a person illegally or improperly detained in public or private custody within such limits beset at liberty ;

(c) that a prisoner detained in any jail situate within such limits be brought before the Court to be there examined as a witness in any matter pending or to be inquired into in such Court;

(d) that a prisoner detained as aforesaid be brought before a Court martial or any Commissioners for trial or to be examined touching any matter pending before such Court martial or Commissioners respectively ;

(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and

(f) that the body of a defendant within such limits be brought in on the Sheriffs return of Cepi Corpus to a writ of attachment.

The question which falls for determination, however, is that if the Court finds that the person brought before it was not being illegally or improperly confined or detained what order can be passed regarding the custody of that person or that if the said person can be sent to a certain institution to reside there without that person's consent or that the custody of the said person can be handed over despite the lack of such a person's consent. It may be observed that the proceedings under Section 491, Cr.P.C. are summary in character. These proceedings are not intended to go beyond the summary consideration of the questions essentially relevant to the alleged detention i.e. whether a detenue is to be set at liberty and a consequence thereof be permitted to go with the person of his or her choice or to drop the proceedings when the detention is found legal. The Court, while deciding an application under Section 491, Cr.P.C. is not required to go into the question of the status of the relationship of the parties by holding full-fledged trial of the counterclaims and it should concern itself only with the free will of the detenue. The Court may "set at liberty", but cannot restore status quo ante against the wishes of the person brought before it. Such a course will lead to curtailment of liberty for which there is no warrant under Section 491 nor can such an order be sustained under Section 591-A of the Code as it cannot be said that allowing a person freedom of movement is an abuse of the process of the Court. A detenue can be sent to "Dar-ul-Aman" when she has shown apprehension of danger to her life if she is sent with either of the parties. A free person, cannot be put to physical restraint or confinement in "Dar-ul-Aman" for an indefinite period and that too not based on any concrete fact or allegation. Mst. Neha Ali, Respondent No. 6, admittedly being sui Juris, cannot be detained in "Dar-ul-Aman" against her wishes. Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973 guarantees protection of life and liberty of citizens and right to liberty is placed on a higher pedestal which is to be respected by all and sundry. It is trite that Courts are guardians of liberty of citizens and under the Constitution are bound to protect such fundamental right of citizens of State. There is no cavil that the object and purpose of establishing shelter homes (Dar-ul-Amans) throughout the country is to provide protection to the oppressed or homeless ladies and to provide them with shelter when they feel insecure with their family members or in the society. When a woman makes a prayer for security to her life, she can be lodged at "Dar-ul-Aman" but still the woman has the right to make a prayer at any stage to the Superintendent of "Dar-ul-Aman" or to the competent Court on whose order she has been sent to "Dar-ul-Aman" to release her and restore her right of liberty. In such a course, she cannot be further kept in "Dar-ul-Aman" under the law of the land. Mst. Neha Ali, Respondent No. 6, is admittedly sui juris and, therefore, she cannot be detained by any person against her wishes. There is no law that a female on the mere ground of her sex must invariably be treated as a person under some sort of disability. The August Supreme Court of Pakistan has held in the case of Ali Muhammad vs. The State and others (2013 SCMR 1484) as under:

…………………………………………….

It is quite ironical and shocking that habeas corpus proceedings before the Lahore High Court, Lahore, which were meant to secure release of a person from an illegal or improper custody or confinement, had been utilized in the present case for depriving a free person of her liberty and the net result achieved was that a grown up young lady who was not found to be in any kind of confinement or under any restraint had been locked up and incarcerated within the confines of a Dar-ul-Aman for an indefinite period! Such an approach adopted and the result achieved by the learned Judge-in-Chamber of the Lahore High Court, Lahore surely ran contrary to the very essence and purpose of a writ or petition for habeas corpus which is securing freedom and not curtailing liberty. We are sure that the learned Judge-in-Chamber of the Lahore High Court, Lahore would have done better if he had sought guidance in this regard from various judgments handed down by this Court on the subject from time to time.

In these indefensible circumstances, after having been punished only for an imagined or apprehended sin, the detenue has appeared to us to be, in the words of Shakespeare's King Lear, a woman "more sinned against than sinning". Apart from that the Constitution of Pakistan mandates that the judgments of this Court are binding on all other Courts in the country but while passing the impugned order the learned Judge-in-Chamber had failed to follow the above mentioned, and many other, judgments rendered by this Court on the subject. It may be true that during the pendency of a petition filed in the nature of habeas corpus a Court can pass a rule nisi regarding interim custody of the alleged detenue but it is unimaginable and unthinkable that after final disposition of such petition the alleged detenue, who was otherwise a free person, may be put to physical restraint or confinement for an indefinite period and that too not on the basis of any concrete fact or allegation but merely on the basis of an imagined possibility of commission of a sin or a crime."

The August Supreme Court of Pakistan has held in the case of Mst. Sahi Bi v. Khalid Hussain and 6 others (1973 SCMR 577) as under:

"Under Section 491, Cr.P.C., if a sui juris detenu is unwilling to go with her husband or guardian, the Court cannot compel her to go with them. She must be set at liberty and allowed to move freely. This position was made clear in the above-mentioned case decided by this Court and the learned Single Judge should have set at liberty the detenu and allowed her to move freely according to her wishes.

It is, however, open to Respondent No. 1 to file a suit for restitution of conjugal rights against the detenu for the redress of his grievance. So far as the proceedings under Section 491, Cr. P. C. are concerned, the only course open to the High Court in the face of the unwillingness of the detenu to go with her husband was to set her at liberty. "

10. As a result of the above discussion, Mst. Neha Ali, Respondent No. 6, being sui juris, is set at liberty and permitted to live her life as she pleases within the dictates of law and faith. Tahir Kazim SDPO Taxila and Tahir Mehmood SI/S.H.O Police Station Taxila, present before the Court, are directed to provide Mst. Neha Ali, Respondent No. 6 with all the possible security and protection and ensure her safety. Furthermore, the petitioner and his family members are directed not to cause any harassment to Mst. Neha Ali, Respondent No. 6. It is observed that Mst. Neha Ali, Respondent No. 6 admittedly being sui juris, is competent to lead a life of her choice and no restraint can be imposed on her even at the instance of her father or brother.

11. It is further held that the observations and findings with regard to the marriage of Mst. Neha Ali, Respondent No. 6 and Ali Akash alias Asima Bibi, Respondent No. 1, as contained in the order dated 30.06.2020 passed by Mr. Muhammad Azeem Akhtar, Additional Sessions Judge Taxila, District Rawalpindi, to the extent of his observations regarding the marriage of Mst. Neha Ali, Respondent No. 6 and Ali Akash alias Asima Bibi, Respondent No. 1, were unwarranted and are held to be of no legal value being beyond the scope of the application before him, The August Supreme Court of Pakistan has already held that the disputed question of marriage cannot be decided in any proceedings under Section 491, Cr.P.C. In the case of Hafiz Abdul Waheed versus Mrs. Asma Jehangir and another (PLD 2004 Supreme Court 219), the August Supreme Court of Pakistan was pleased to observe as under:

"There is force in the submission of the learned Attorney-General that the High Court has needlessly blown up the issue. The sole controversy before the High Court in Criminal Appeal No. 98 of 1997 was whether Mst. Saima Waheed daughter of the appellant was being wrongfully confined in the place known as ‘Dastak’, run by Respondent No. 1. On record, an application filed by Mst. Saima Waheed to the effect that she was living in 'Dastak1 of her free-will is available, She also appeared before learned Judge (Justice Malik Muhammad Qayyum, as he then was) on 18-4-1996 where again she asserted that she was living in 'Dastak' and would like to go there. Learned Judge, however, declined to accede to this request on the ground that another learned Judge (Justice Ihsan-ul-Haq Chaudhry, as he then was) had in another habeas corpus petition directed her recovery from 'Dastak' and her lodging in Dar-ul-Aman. Justice Malik Muhammad Qayyum notwithstanding her protest and apprehension of serious danger to her life, directed that order of Justice Ihsan-ul-Haq Chaudhry be complied with. He, however, directed Senior Superintendent of Police, Lahore to personally ensure safety of the detenue while in ‘Dar-ul-Aman’. The learned Judges of the High Court, with due deference, could have and ought to have avoided the needless controversy as regards the validity of the marriage which subject in any case falls within the exclusive domain of Family Court established under the West Pakistan Family Courts (Act XXXV), 1964.

1. The proceedings in the High Court originated from the petition of the appellant under Section 491 of the Code of Criminal Procedure, 1898, praying:

"For the recovery and release of Mst. Saima Waheed, the detenue from illegal detention/custody of the respondents."

In the facts and circumstances of the case particularly in view of the stance of the alleged detenue that she was voluntarily putting up at 'Dastak', the High Court clearly transgressed its jurisdiction and by formulating the question of validity of marriage and then answering the same, assumed to itself the exclusive jurisdiction of the Family Court in such matter. The point need not be laboured further and may be concluded by observing that it was inappropriate and undesirable, if not illegal for the High Court to have determined the fate of the couple by adjudicating the validity of marriage on the touchstone of Injunctions, of Islam, in proceedings under Section 491, Cr.P.C.

12. So far as the points raised by the counsel for the petitioner are concerned regarding the marriage and gender of Ali Akash alias Asima Bibi, the Respondent No. 1 are concerned, the same cannot be resolved in these proceedings. The petitioner is at liberty to agitate the same before the proper forums, either before the Family Court or if there is any criminal case registered according to the version of the petitioner, then in criminal case proceedings. If the petitioner approaches the concerned forum, such forum shall attend and resolve the proposition without taking any influence from this order.

13. As a corollary to the order passed by this Court dated 07.08.2020, it is also directed that the National Database and Registration Authority (NADRA) shall pass a fresh order regarding the change of entry in the column relating to gender made in the CNIC No. 37406-6414457-0 relating to Ali Akash alias Asima Bibi, Respondent No. 1, in accordance with the law(including the provisions of the Transgender Persons (Protection of Rights) Act,2018) and after providing fair opportunity of hearing to all the parties concerned. The office is directed to transmit a copy of this order to the National Database and Registration Authority (NADRA) for compliance of the same. The order of this Court dated 07.08.2020 whereby it was directed to place the name of Ali Akash alias Asima Bibi, Respondent No. 1. in the Exit Control Lists, is recalled. The Federal Government shall be at liberty to proceed in the matter of placing the name of Ali Akash alias Asima Bibi, Respondent No. 1 in the Exit Control Lists in accordance with law and if need be.

1. Needless to add, it is made clear that whatever has been observed above is the result of the tentative assessment and shall not prejudice the case of either side during subsequent proceedings before any forum

2. With these observations and in these terms this petition stands disposed of.

(M.M.R.) Petition disposed

PLJ 2020 Lahore 573[Multan Bench, Multan]

Present: Ch. Muhammad Masood Jahangir, J.

NOOR AHMAD and 6 others--Appellants

versus

ANWAAR MOHYUDDIN and others--Respondents

R.S.A. No. 25 of 1991, heard on 26.6.2019.

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

----S. 100--Specific Relief Act, (I of 1877), S. 42--Suit for declaration--Decreed--Appeal---Allowed--Challenge to--Registered sale-deed--Documentary proof--Possession of property--No ambiguity in transfer of land--Original transfer--Validity--Respondents No. 1 to 9 rested on sale deed (Exh.P1) whereby they had not only purchased share of Allah Bakhsh, ascendant of Respondents No. 10 to 14, but his mother and brother, also alienated their shares to them--Surprisingly despite fact that descendants of Allah Bakhsh as well as their transferees Asghar Ali and appellants to whom property was finally alienated, filed independent written statements, but none out of them either denied execution of Exh.P1 or challenged its legality, as such having been admitted by their own conduct and act, there left nothing for plaintiffs to prove their deal as well as construction of Exh.P1 any further--Exh.P1 was a registered instrument aged more than thirty years, which having not been questioned by executants or afterwards by their descendants as well as subsequent transferees attained strong presumption of correctness and has to be given preference over oral statements recorded on behalf of defendants--It is also proved on record that for implementation of Exh.P1 in revenue record, mutation No. 157 (Exh.P3) was promptly entered on 23.07.1954 by concerned Revenue Officer, but subsequently it was rejected on sole ground that land referred therein stood acquired by Thai development Authority--Cancellation of Exh.P3 did not mean that alienation made in favour of plaintiffs also stood terminated--There is no cavil that mutation per se is not deed of title, as such its cancellation was not enough to annul ownership of rightful owners structured on a valid title document--Above all, according to para 7.32 of Land Record Manual, which are statutory instructions having force of law and binding upon revenue authorities, it is imperative upon registrar and sub-registrar to send monthly reports to revenue official/officer, particulars of all registered deeds with regard to transfer of agricultural land for entries in their mutation register for making an appropriate order for change in revenue record in accordance therewith and any omission by beneficiary to report registered deed to patwari/revenue officer was not such an act to invalidate his original instrument until and unless his basic document is cancelled by Court of ultimate jurisdiction--Plaintiffs by bringing on record copies of khasra girdawaris also proved that after sale through Exh.P1, possession of property referred therein was delivered to them, as such sale in their favour was not only perfect and matured for all intents and purposes, rather it is intact till today--As per contents of Exh.P1 chunk of land situated in Mouza Ladhana that had been purchased by plaintiffs, whereas legacy of Allah Bakhsh on his death was opened in favour of his successors-in-interest vide inheritance mutation No. 353 (Exh.P2) and its pictorial view affirmed that land faling in khewat No. 1 of mouza Ladhana was mutated to them--Adjustment order (Exh.P4) also clarified that; this particular land was adjusted, hence there left no ambiguity that land of Allah Bakhsh, originally transferred to plaintiffs, had been subsequently acquired and adjusted against suit property--Had fit not been so, then appellants as well as co-defendants must have brought on record, some documentary proof that property actually purchased by plaintiffs was either still occupied/owned by them or transferred to someone else--Moreover, there was no need to dispute attestation of Exh.P1 as did by Allah Wasaya (DW1) in his deposition, whereas it has been consistently held that mere adverse entries in revenue record do not create or extinguish title of property--Counsel for appellants despite his best was not able to bring case within mischief of Section 100 of Code, 1908--Decree impugned herein is well reasoned and based on material available on suit file, which otherwise has to be given preference over judgment of his subordinate, hence is maintained--Appeal was dismissed. [Pp. 576, 577, 578 & 579] A, B, C & D

1968 SCMR 573, 1968 SCMR 842.

Mr. Muhammad Faisal Bashir Chaudhary Advocate for Appellants.

Mr. Kanwar Muhammad Younas, Advocate for Respondents.

Date of hearing: 26.6.2019.

Judgment

This Regular Second Appeal was preferred against judgment and decree dated 03.06.1991 of Additional District Judge, Layyah, whereby appeal filed on behalf of Respondents No. 1 to 9 plaintiffs was allowed, judgment of the learned trial Court of 13.6.1989 was set aside and their suit was decreed as prayed for.

1. Precisely, facts of the case were that initially the plaintiffs instituted suit for declaring them to be owners of the subject land having been purchased from Allah Bukhsh, the ascendant of Proforma respondents/Defendants No. 10 to 14, vide registered sale-deed dated 29.06.1954 (Exh. P-1) as well as for the cancellation of inheritance Mutation No. 353 dated 01.07.1981 attested in favour of the latters, sale-deed dated 17.08.1981, whereby they further transferred it in favour of proforma-Respondent No. 15 and sale-deed dated 10.01.1982 executed on latter's behalf in favour of appellants, besides order dated 06.10.1981 passed by EACO whereby the suit land was adjusted as a right of return in favour of descendants of Allah Bukhsh/Respondents No. 10 to 14 and the order dated 29.05.1984 of the Additional Commissioner (Revenue) Dera Ghazi Khan by Virtue of which appeal of the plaintiffs was dismissed were also called in question, however, the suit was subsequently amended and a decree for restoration of possession was also claimed.

Obviously the suit was contested by the descendants of Allah Bukhsh, Asghar Ali and the appellants to support the inheritance mutation as well as instruments of sale whereby suit land was subsequently transferred to them.

After receiving and appreciating the evidence so led by the contesting parties initially the suit was dismissed by the Court of first instance, however, finally it was decreed by his appellate Court vide impugned judgment as referred in Para 1 ante.

Mr. Muhammad Faisal Bashir, learned counsel for the appellants emphasized with great vehemence that suit was instituted after decades, which was badly time barred and the learned trial Court was perfect in dismissing it on the said score; that the plaintiffs earlier approached the revenue hierarchy and after their failure before said forum, the suit was not maintainable, but learned appellate Court without determining whether civil Court had the jurisdiction to entertain and decide the suit erroneously decreed it; that property purchased by the plaintiffs-respondents through sale deed from Allah Bukhsh was not similar to the area for which declaration was sought for and that the impugned decree being tainted with misreading and non-reading of evidence could not be sustained, whereas the comprehensive judgment rendered by the learned trial Court should be restored. In support of his contentions, he has placed reliance upon the judgments reported as Khaleel and 2 others vs. Karamat Ali through LRs and another (2016 CLC 714), Muhammad Moosa alias Niaz Ali Moosa vs. Province of Punjab and others (2017 Law Notes 358), Barkat Ali versus Muhammad Nawaz (PLD 2004 SC 489) and Allah Ditta versus Amina Bibi (2011 SCMR 1483) and prayed for acceptance of appeal, setting aside of the impugned decree and restoration of the judgment of the learned trial Court.

In contra, it was accentuated by learned counsel for contesting respondents that Allah Bakhsh predecessor-in-interest of proforma respondents along with two others was owner of land in dispute besides some other area, who jointly transferred its title to the plaintiffs vide sale deed (Exh.P-1) and vires thereof had never been challenged by him despite that he survived for years; that even the present appellants and the descendants of Allah Bakhsh had also not disputed the said instrument either by filing independent suit or through the defence raised in the present litigation, as such the undisputed registered instrument having been executed and attested more than thirty years and much prior to promulgation of Qanun-e-Shahadat Order, 1984 attained strong presumption of correctness, therefore, the learned appellate Court was perfect in relying upon the same; that although the land referred in afore-noted sale deed (Exh. P1) was different to the suit land, but by bringing on record copy of adjustment order and revenue record, it was proved without any doubt that the land referred in Exh.P-1 had been acquired by Thal Development Authority on 04.04.1951, which was adjusted against the suit land.

1. Arguments heard. Record perused.

4. In fact, the case of the plaintiffs-Respondents No. 1 to 9 rested on sale deed (Exh.P1) whereby they had not only purchased the share of Allah Bakhsh, ascendant of Respondents No. 10 to 14, but his mother, Mst. Zohran and brother, Khuda Bakhsh also alienated their shares to them. Surprisingly despite the fact that descendants of Allah Bakhsh as well as their transferees Asghar Ali and the appellants to whom the property was finally alienated, filed independent written statements, but none out of them either denied the execution of Exh.P1 or challenged its legality, as such having been admitted by their own conduct and act, there left nothing for the plaintiffs to prove their deal as well as construction of Exh.P1 any further. The emphasis of Mr. Muhammad Faisal Bashir Chaudhry, Advocate for the appellants that Allah Wasaya (DW1) in his statement-in-chief explicitly claimed it to be forged and collusive, as such it was sine qua non for the beneficiaries of Exh.P1 not only to prove its genuineness rather the transaction couched therein, was fallacious. As per principle of secundum allegata et probata, any evidence led to prove a fact, which was omitted to be first explained in the pleadings is liable to be ignored. This principle has also been enunciated by Order VI Rule 2 as well as Order VIII Rule 2 of the Code, 1908 and further affirmed by the apex Court in the judgment reported as Pakistan vs. Abdul Ghani (PLD 1964 SC 68), Muhammad Wali Khan and another vs. Gul Sarwar Khan and another (PLD 2010 SC 965) and Haider Ali Bhimji vs. Vith Additional District Judge, Karachi (South) and another (2012 SCMR 254). So, this lacuna was fatal for the appellants as well as their co-defendants. Moreover, Exh.P1 was a registered instrument aged more than thirty years, which having not been questioned by the executants or afterwards by their descendants as well as subsequent transferees attained strong presumption of correctness and has to be given preference over the oral statements recorded on behalf of defendants. It is also proved on record that for the implementation of Exh.P1 dated 29.06.1954 in revenue record, Mutation No. 157 (Exh.P3) was promptly entered on 23.07.1954 by the concerned Revenue Officer, but subsequently it was rejected on the sole ground that land referred therein stood acquired by Thal Development Authority. The cancellation of Exh.P3 did not mean that alienation made in favour of the plaintiffs also stood terminated. There is no cavil that mutation per se is not deed of title, as such its cancellation was not enough to annul the ownership of the rightful owners structured on a valid title document. Above all, according to para 7.32 of the Land Record Manual, which are statutory instructions having force of law and binding upon the revenue authorities, it is imperative upon registrar and sub-registrar to send monthly reports to the revenue official/officer, particulars of all registered deeds with regard to transfer of agricultural land for entries in their mutation register for making an appropriate order for change in the revenue record in accordance therewith and any omission by beneficiary to report registered deed to the patwari/revenue officer was not such an act to invalidate his original instrument until and unless his basic document is cancelled by the Court of ultimate jurisdiction. The plaintiffs by bringing on record copies of khasra girdawaris also proved that after the sale through Exh.P1, possession of the property referred therein was delivered to them, as such the sale in their favour was not only perfect and matured for all intents and purposes, rather it is intact till today.

5. There is no doubt that land referred in Exh.P1 was entirely different than that for which decree for possession was prayed. The learned appellate Court through impugned judgment digged out the relevant record to elucidate the truth and to crosscheck the same this Court with the able assistance of learned counsel for the parties has also gone through the original suit record. As per contents of Exh.P1 chunk of land situated in Mouza Ladhana Thal had been purchased by the plaintiffs, whereas legacy of Allah Bakhsh on his death was opened in favour of his successors-in-interest vide inheritance Mutation No. 353 (Exh.P2) and its pictorial view affirmed that land falling in khewat No. 1 of mouza Ladhana was mutated to them. The adjustment order (Exh.P4) also clarified that this particular land was adjusted, hence there left no ambiguity that land of Allah Bakhsh, originally transferred to the plaintiffs, had been subsequently acquired and adjusted against the suit property. Had it not been so, then the appellants as well as co-defendants must have brought on record, some documentary proof that the property actually purchased by plaintiffs was either still occupied/owned by them or transferred to someone else. Moreover, there was no need to dispute the attestation of Exh.P1 as did by Allah Wasaya (DW1) in his deposition, whereas it has been consistently held that mere adverse entries in the revenue record do not create or extinguish title of the property. In this regard, reference may be made to the precedent of the apex Court reported in cases Mian Ghulam Ahmad vs. Muhammad Sarwar and others (1968 SCMR 573), Lal and others vs. Mian Dad and another (1968 SCMR 842) and Muhammad Lehrasab Khan vs. Mst. Aqeel-un-Nisa, etc. NLR 2001 Civ.65). On the other hand case-law referred by learned counsel for the appellants and relied by learned trial Court being distinguishable is not applicable.

6. The argument of learned counsel for the appellants that suit having been instituted after much delay of the attestation of Exh.P1 was badly time barred, is not well founded. The cause of action to its beneficiaries firstly accrued when their land was acquired and subsequently adjusted to the defendants, but despite their approach to the concerned hierarchy the relief was denied on lame excuses. The ascendant of defendants Nos. 1 to 5 had already transferred his title, hence nothing more was left to be inherited by the latters for its transfer to Asghar Ali Respondent No. 15 or the appellants. The entire superstructure raised in their favour without any title or legal backing Could not be perpetuated and every fresh entry in the revenue record based on inheritance mutation of Allah Bakhsh or subsequent sale deeds accrued fresh cause of action to the plaintiffs to institute suit in hand, which was well within time. See Wali and 10 others vs. Akbar and 5 others (1995 SCMR 284).

1. So far as argument of learned counsel for the appellants that civil Court had no jurisdiction to try the suit is concerned, suffice it to say that in this regard Issue No. 2 was framed by the learned civil Court but having not pressed the same was answered and its said

findings were never assailed before the learned appellate Court by means of separate appeal or cross objection, hence at this stage it cannot be agitated afresh.

8. Learned counsel for appellants despite his best was not able to bring the case within the mischief of Section 100 of the Code, 1908. The decree impugned herein is well reasoned and based on material available on suit file, which otherwise has to be given preference over the judgment of his subordinate, hence is maintained and instant appeal being devoid of merit and force stands dismissed with no order as to costs.

(M.M.R.) Appeal dismissed

PLJ 2020 Lahore 579 (DB)[Multan Bench, Multan]

Present: Mujahid Mustaqeem Ahmed and Jawad Hassan, JJ.

COMMISSIONER INLAND REVENUE SAHIWAL ZONE--Applicant

versus

MUHAMMAD SAFDAR--Respondents

Tax Reference No. 15 of 2018, decided on 24.2.2020.

Income Tax Ordinance, 2001--

----S. 133(1)--Reference--Question of law--Amendment in order was violation of Board's circular--Examination of record--Scrutiny of relevant record--We agree with findings of Appellate Tribunal and see no reason to interfere with impugned order which does not suffer from any factual or legal infirmity as same has been passed after scrutinizing relevant record as well as on basis of sound reasoning--Reference application was dismissed. [Pp. 580 & 581] A

Mr. Rashid Ahmad Joiya, Advocate for Applicant.

Mr. Muhammad Imran Ghazi, Advocate for Respondent.

Date of hearing: 24.2.2020.

Order

This Reference Application under Section 133(1) of the Income Tax Ordinance, 2001 (the ''Ordinance") has been filed by the Applicant, being dissatisfied by the order passed by the Appellate Tribunal Inland Revenue, Lahore Bench Lahore ("Appellate Tribunal") in I.T.A. No. 878/LB/2018 (Tax Year 2011) and I.T.A. No. 2815/LB/2014 (Tax Year 2011) dated 17.07.2018 (the "impugned order") . Following questions of law are pressed for our opinion in instant Reference, which are asserted to have arisen out of impugned order:--

QUESTIONS OF LAW

I) "Whether the Appellate Tribunal has not erred in law to ignore its earlier judgment reported as 2012 PTD 547 (Trib) wherein it has been categorically held that the annulment does not debar the department to proceed afresh as per provisions of law?

II) "Whether the Appellate Tribunal has not erred in law by not appreciating that the general remarks of the Commissioner (Appeals) to the effect that officer may examine the record/documents for correct appraisal of the case and to proceed according to law after providing proper opportunity of hearing were not the directions which could influence the officer while proceeding in the light of judgment reported as 2012 PTD 547 (Trib)? ".

1. We have heard the learned counsel for the parties at length and have gone through the impugned order dated 17.07.2018 passed by the Appellate Tribunal. The relevant portion of the impugned order is reproduced hereunder:

"Perusal of impugned order reveals that the CIR (A) annulled the order of the assessing officer after holding that deemed order was amended by passing ex-parte order under Section 121 in violation of Board's Circular C.No. 7(2)/DT-14/94 dated 01.02.1994. He further held that huge addition under Section 111(1) (b) has been made on account of closing stock declared at Rs. 17,947,965/- as against capital shown as 'Nil' in the return. He further observed that the appellant availed credit limit of Rs. 31(M) and paid markup at Rs. 388,004/- and at Rs. 421,990/- on it during the year. However, while amending the deemed assessment the assessing officer allowed these financial charges against credit limit but failed to correlate it with the declared closing stock. Hence, the addition is held unjustified. Considering the findings recorded above we are of the opinion that the CIR (A) has erred in law to direct the assessing officer to examine record/documents for correct appraisal".

3. We agree with the findings of the Appellate Tribunal and see no reason to interfere with the impugned order which does not suffer from any factual or legal infirmity as the same has been passed after

scrutinizing the relevant record as well as on the basis of sound reasoning.

1. Therefore, the Reference application is decided against the Applicant.

2. Office shall send a copy of this order under seal of the Court to the Appellate Tribunal as per Section 133(5) of the Ordinance.

(Y.A.) Application dismissed

PLJ 2020 Lahore 581Present: Shahid Karim, J.

M/s. BLOOM PHARMACEUTICALS (PVT.) LTD.--Petitioner

versus

PROVINCE OF PUNJAB and others--Respondents

W.P. No. 40067 of 2020, decided on 8.9.2020.

Drugs Act, 1976--

----S. 22(5)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Writ petition regarding retesting of sample--Dismissed--Obligation of board--Non-mentioning of period for retesting of sample--Direction to--Board was under an obligation to send sample for retesting on request of petitioner in terms of sub-section (5) of Section 22 of Drugs Act, 1976--Strangely, in impugned order reason which weighed with Board was that request for retesting had been made beyond period of ten days, is not apparent from any provision of Drugs Act, 1970--In fact, Section 22 does not make any mention of period within which such a request should be made--Request of petitioner therefore could not be denied on this ground--Board shall proceed in terms of sub-section (5) of Section 22 of Act, 1976 and cause sample of drugs subject matter of this petition to be tested by Federal Drug Laboratory at cost of petitioner--Petition was allowed.

[Pp. 582] A & B

Rana Muhammad Maqsood and Mr. Muhammad Salman Ali, Advocates for Petitioner.

Date of hearing: 8.9.2020.

Order

This constitutional petition challenges the order dated 13.8.2020 passed by Provincial Quality Control Board (the Board).

1. The learned counsel for the petitioner relies upon an order passed in W.P No. 32138 of 2019 by which it has been held that the Board has no discretion to refuse the request of an accused to cause the sample of drugs to be relisted by the Federal Drug Laboratory. However, the Board turned down the request of the petitioner on the ground that it had been filed beyond the stipulated time of ten days.

3. Firstly, the order passed in W.P No. 32138 of 2019 relied upon by the petitioner is on all fours with the case of the petitioner. Therefore, the Board was under an obligation to send the sample for retesting on the request of the petitioner in terms of sub-section (5) of Section 22 of the Drugs Act, 1976. Strangely, in the impugned order the reason which weighed with the Board was that the request for retesting had been made beyond period of ten days, is not apparent from any provision of the Drugs Act, 1976. In fact, Section 22 does not make any mention of the period within which such a request should be made. The request of the petitioner therefore could not be denied on this ground.

4. In view of the above, this petition is allowed and the impugned order is set aside. The Board shall proceed in terms of sub-section (5) of Section 22 of the Act, 1976 and cause the sample of the drugs subject matter of this petition to be tested by the Federal Drug Laboratory at the cost of the petitioner.

(M.M.R.) Petition allowed

PLJ 2020 Lahore 582 (DB)

Present: Ch. Muhammad Masood Jahangir and Shams Mehmood Mirza, JJ.

M/s. UNIVERSAL INSURANCE COMPANY LTD. through Managing Director--Appellant

versus

M/s. SHAD AND COMPANY through Chairman--Respondent

I.A. No. 238969 of 2018, heard on 17.9.2020.

Insurance Ordinance, 2000--

----Ss. 118 and 124--Insurance of commercial vehicle--Oil tanker was attacked by unknown persons--Registration of FIR--Surveyor report--Loss assessment lodging of insurance claim--Allowed presumption of truth--Challenge to-- Evidentiary value of report shall be examined at time of final arguments--Insurance Tribunal rightly passed order directing appellant to pay specific amount--Appellant singularly failed to prove that it was a case of "Total Loss" and that it was justified in repudiating insurance claim put forward by respondent--Survey report, itself stated that fire tankers of MCQ extinguished fire and according to documents of that department combustible material of some kind was used and that "....vehicle burnt badly as well as contents loaded in Tanker"--Prosecution witness RW-2 failed to mention details of shopkeepers from whom estimates of tanker were allegedly obtained--Photographs of vehicle show that it was completely burnt--Appellant did not tender any cogent much less independent evidence to prove that vehicle could be repaired--There is no presumption of truth attached to Surveyor's report under provisions of Ordinance and Rules--There can be no cavil to proposition that a survey report for assessment of loss prepared after appreciation of evidence, with due diligence and skill and being devoid of any apparent error shall be deemed to have been given in good faith--Such a report cannot be rejected by Court if contents thereof are proved in accordance with law--Held: Company was able to discharge onus of issue which is accordingly decided in its favour--Similarly, appellant, did not discharge onus which was placed on it under issued framed by Court--Appeal was dismissed. [Pp. 587, 588, 589 & 590] A, B, C, D, E, F & G

Rana Muhammad Arshad Khan Advocate for Appellant.

Khawaja Muhammad Ajmal Advocate for Respondent.

Date of hearing: 17.9.2020.

Judgment

Shams Mehmood Mirza, J.--This is an appeal filed under Section 124 of the Insurance Ordinance, 2000 (the Ordinance) for calling into question order dated 30.08.2018 passed by the Insurance Tribunal whereby the petition filed by the respondent was allowed.

1. Factual background of the case may be stated as under. The respondent carried out a comprehensive insurance of its commercial vehicle (oil tanker) from the appellant in the sum of Rs. 4,000,000/- on 08.04.2010 with expiry on 07.04.2011. On its journey towards Kandhar, Afghanistan carrying 48000 litters of diesel, the oil tanker was attacked by unknown persons who set it on fire. An insurance claim was lodged by the respondent with the appellant and FIR No. 176 of 2010 was also lodged on 19.10.2010 with police station Shialkot, Akhtarabad, Quetta. The appellant insurance Messrs Saddar-ud-Din Associates as surveyor to assess the loss that had occurred to the oil tanker. The said surveyor through its report Exh.RW-2/1 determined that ".... keeping in view the terms and conditions, warranties of the policy of insurance, subject vehicle is repairable and cannot be policy of insurance, subject vehicle is repairable and cannot be declared as 'Total Loss' as suck may be treated as closed." The insurance claim of the respondent was accordingly repudiated by the appellant on the ground that the insurance policy only covered total loss.

2. The respondent being dissatisfied by the repudiation of the insurance claim filed a petition under Section 118 of the Ordinance which was contested by the appellant by filing its written reply. Out of the divergent pleadings of the parties, the following issues were framed:

3. Whether the applicant is entitled to recover the insurance claim valuing Rs. 4,000,000/- along with liquidated damages as prayed for? OPA

4. Whether the suit is barred u/s 69 of the Partnership Act? OPR

5. Whether the application for recovery of insurance claim has not been filed by the authorized person? OPR

6. Whether under the policy only total loss is covered and the vehicle in question is repairable, if so its effect? OPR

7. Whether the applicant has not affixed the property Court fee? OPR

8. Whether the application is not supported by an affidavit? OPR

9. Relief.

10. For the completeness of facts, it may be stated that the respondent before framing of the issues filed an application before the Insurance Tribunal seeking appointment of fresh surveyor whereupon learned counsel for the petitioner recorded his statement showing his no objection for appointment of independent surveyor in accordance with rule 24 of Securities and Exchange Commission of Pakistan Rules, 2002 for assessing the loss caused to the oil tanker. The Insurance Tribunal accordingly passed order dated 12.07.2013 directing both the parties to appear before the Securities and Exchange Commission of Pakistan (SECP) for appointment of an independent surveyor. According to the report furnished by SECP before the Insurance Tribunal, a hearing was granted to the parties and thereafter the appellant was directed to choose between two well reputed surveyors i.e. Messrs Joseph Lobo (Pvt.) Limited and Messrs Nanjee & Co. (Pvt.) Limited. The appellant videits letter dated 23.11.2013 addressed to SECP agreed to the appointment of Messrs Nanjee & Co. (Pvt.) Limited (hereinafter Naanjee & Co.). Naanjee & Co. after its appointment prepared report after inspecting the oil tanker, which report was brought on record through Abid Hussain who appeared in the witness box as CW-1 and tendered the report as Exh.CW-1/2. The appellant also filed objections on the survey report which were contested by the respondent by filing its reply. The Insurance Tribunal dismissed the objectionsvide order dated 07.04.2016 holding that "....at this stage the controversy in this case cannot be resolved by relying upon any report of the surveyor. If any tentative finding is given at this stage about sanctity of any report of any surveyors that will materially prejudice the case of the parties. Still issues are to be framed and evidence of the parties is to be recorded…. At final stage in light of evidence of the parties, Insurance Tribunal will be in a position to consider the relevant and admissible evidence and the worth of the evidence including the survey reports if tendered and proved or disproved in accordance with law by the parties."

11. Both the parties led their evidence, oral as well as documentary. The respondent produced in evidence Shafique ur Rehman, Deputy Director Insurance Division, SECP as AW-1 and Rehmat Khan Wardaq being its attorney as AW-2 and produced documents as Exh.A-1 to Mark-Q. The appellant examined Abdul Waheed Chaudhary, Deputy General Manager (Claims) as RW-1 and Saddar-ud-Din, the surveyor, as RW-2 who submitted in evidence Exh.R-1, Exh.R-B and Mark-C. Abid Hussain surveyor of Nanjee & Co. was examined as Court witness, CW-1, who tendered the survey report as Exh.CW-1/2.

12. Our findings on the issues are as under.

ISSUES No. 1 & 4:

1. Both these issues being interlinked are decided together.

2. Learned counsel for the appellant submitted that conceding statement recorded by Insurance Tribunal for the appointment of a fresh surveyor was predicated upon fulfillment of the requirements of Rule 24 of the SECP Rules. It was also the case of the learned counsel that the Insurance Tribunal by virtue of Section 122 and 123 had limited powers and could not have ordered for appointment of a fresh surveyor. It was accordingly submitted that the report filed by Nanjee & Co. ought not to have been relied upon by the Insurance Tribunal for rendering decision in favour of the respondent. It was stated that the surveyor appointed by the appellant declared the case of the respondent as not falling under the category of total loss and as such the Insurance Tribunal could not have allowed the claim of the respondent.

3. Section 85 of the Ordinance requires SECP to frame rule for appointment of an independent survey to be conducted in respect of such class or classes of insurance claim and meeting such criteria as may be prescribed. Rule 24 authorizes SECP in terms of Section 85 of the Ordinance to direct the insurer to arrange for an independent survey of the loss through surveyors appointed by it in case it has reason to believe that an insurance surveyors has submitted a false report or has grossly over-assessed and under-assessed the loss or has made an adjustment of loss in a grossly unjust manner.

4. It is apparent from the record particularly order dated 12.07.2013 passed by the Insurance Tribunal that a categorical direction was given to SECP for appointment of a fresh surveyor to assess the loss occurred to the oil tanker of the respondent. The Insurance Tribunal while passing the aforementioned order nowhere gave any directions for SECP to do the needful in terms of Rule 24, the conditional statement made by the counsel for the appellant notwithstanding. This issue was also agitated by the appellant before SECP and the plea so raised was rejected on the ground that the Insurance Tribunal did not direct SECP to exercise its powers under Rule 24 rather SECP was directed to appoint the surveyor. It may be stated the power of SECP to appoint independent surveyor for re-assessing the loss is a parallel power to be exercised upon fulfillment of condition laid down by Rule 24.

5. In terms of Section 122 of the Ordinance, the Insurance Tribunal in the exercise of its jurisdiction in respect of the claim filed by the policy holder against the insurance company has all the necessary powers vested in the civil Court under the Code of Civil Procedure, 1908 (the Code). The Code grants necessary powers to the civil Court to appoint local commission in terms of Section 75 and Order XXVI particularly its Rules 9 and 10, inter alia, to elucidate any matter in dispute between the parties or ascertaining the value of any property. By virtue of Section 122 of the Ordinance, such powers for appointment of a local commission are also available to the Insurance Tribunal. Of course, a report by the local commission has no evidentiary value and contents thereof are to be proved like any other fact in the course of evidence to be led by the parties. The appointment of Naanjee & Co. partakes the character of a local commission with all the powers conferred by the Code. SECP was directed to appoint the surveyor as the insurance surveyors are registered with SECP. While dismissing the objections on the report of Naanjee & Co., the Insurance Tribunal rightly held that the evidentiary value of the report shall be examined at the time of final arguments. In order to prove the contents of the survey report, Exh.CW-1/2, the surveyor of Nanjee & Co. was examined as Court witnesses and the appellant was provided opportunity to cross-examine him which it did. We are, therefore, of the opinion that the objection of the appellant on the survey report prepared by Nanjee & Co. is misplaced. The Insurance Tribunal by virtue of Section 122 of the Ordinance is not denuded of its power to itself appoint a surveyor or to direct SECP to do so independent of rule 24 to assess the loss occurred to a policy holder.

12. The Insurance policy in respect of the oil tanker is admitted between the parties. The fact that the oil tanker came under attack and was damaged on its way to Kandhar, Afghanistan is also not in dispute. The only point of divergence between the two surveyors is whether it was the case of 'Total Loss' or otherwise. Saddar-ud-Din and Associates, a surveyor appointed by the appellant, declared it to be not a case of 'Total Loss' whereas Nanjee & Co. determined otherwise.

1. Rehmat Khan Wardag, the Managing Partner of the respondent entered in the witness box as AW-2 and reiterated the contents of the petition in his statement. It was stated by him that the oil tanker was completely burnt as the assailants had put the tanker to fire and also fired bullets in its body. Nothing could be extracted from the said witness in cross-examination by the appellant.

2. The appellant produced in evidence Abdul Waheed, Deputy General Manager (Claim) as RW-1. He stated that the insurance policy was in the name of one Mr. Subhan which was on Total Loss basis. The appellant appointed the surveyor on being informed about the incident and that the survey was conducted on 19.10.2010. The surveyor recommended the loss to the vehicle as not payable as the vehicle was repairable. In cross-examination, RW-1 admitted that the insurance policy (Mark RA) reflected Mr. Subhan as keeper of M/s Shad and Company and that both are one and the same thing. It was admitted that the appellant selected Naanjee & Co. as the surveyor upon being asked by SECP. He admitted that the oil tanker was carrying 48000 liters diesel. He also admitted that "Occurrence in this case about the burning of the vehicle was duly reported in some of the newspapers and also aired on some of the T.V channels."

3. Saddar-ud-Din, Chief Executive Officer of Messrs Saddar ud Din Associates entered appearance in the witness box as RW-2 and submitted the survey report as Exh.R-1. He stated that the said report was signed by him and that he too examined the oil tanker which was found to be repairable and that the respondent was not entitled to the insurance claim as per the insurance policy. In cross-examination, RW-2 stated that he had visited workshops for preparing the estimates for repair of the vehicle and also “………obtained opinion from the market about the burnt items of the vehicle.' He, however, admitted that he could not ".... name any of the shopkeepers from where the opinion about the estimate of burned items of the vehicle was obtained." Most, importantly, he accepted the fact that "Before our reaching four vehicles of fire brigades had reached at the spot to extinguish the fire" He also acknowledged that the oil tanker was "... carrying on with highly inflammable fuel."

4. Abid Hussain on behalf of Naanjee & Co. appeared in the witness box as CW-1 and submitted his report as Exh.CW-1/2 together with expert report of Hino Frontier. In response to questions put to him by the appellant, he stated that Naanjee & Co. was appointed by SECP to re-survey for the loss of the vehicle through letter dated 20.11.2013. He confirmed that Naanjee & Co. got the vehicle examined from Hino Motors. Besides this the appellant did not put any meaningful questions to this witness to impeach the survey report prepared by Naanjee & Co.

17. After examining the testimonies of the witnesses produced by the parties and the Court witness, we have come to the conclusion that the Insurance Tribunal rightly passed the order directing the appellant to pay an amount of Rs. 4,000,000/- to the respondent along with other dues mentioned in the impugned order. Our reasons for arriving at this conclusion are based on the fact that the appellant singularly failed to prove that it was a case of "Total Loss" and that it was justified in repudiating the insurance claim put forward by the respondent. Saddar-ud-Din, RW-2, throughout his testimony referred to the oil tanker as "burnt vehicle". It is an admitted fact that the oil tanker was carrying 48000 liters of diesel. The survey report, Exh.R-1, itself stated that fire tankers of Metropolitan Corporation Quetta extinguished the fire and according to the documents of that department combustible material of some kind was used and that the "....vehicle burnt badly as well as the contents loaded in Tanker." RW-2 failed to mention the details of the shopkeepers from whom the estimates of the tanker were allegedly obtained. It stretches imagination beyond reasonable belief that a tanker which is carrying 48000 liters of diesel and which was put on fire and fired at would remain repairable. The photographs of the vehicle appended with Exh.R-1 show that it was completely burnt. In short, the appellant did not tender any cogent much less independent evidence to prove that the vehicle could be repaired. There is no presumption of truth attached to the Surveyor's report under the provisions of the Ordinance and the rules framed thereunder. There can be no cavil to the proposition that a survey report for assessment of loss prepared after appreciation of evidence, with due diligence and skill and being devoid of any apparent error shall be deemed to have been given in good faith (see Rule 22 of the Insurance Rules, 2002). Such a report cannot be rejected by the Court if the contents thereof are proved in accordance with law. The survey report prepared by Saddar-ud-Din Associates, however, did not meet the afore-mentioned standards. On the other hand, Naanjee and Co. which was appointed by SECP with the free consent of the appellant surveyed the vehicle and stated in its report Exh.CW-1/2 that it was burnt completely and that it was a case of total loss. It was stated in the said report that a quotation was obtained from Messrs Hino Frontier Motors (Pvt.) Limited "....who after detailed inspection of the vehicle prepared a detailed estimate in the sum of Rs. 6,272,810/- which is more than the sum insured of the said vehicle"........ It was also stated in the said report that even after spending the afore-mentioned amount the ".... repairers were unable to give a road worthy certificate on the plea that the chassis/engine head and suspension parts had lost strength due to excessive heat and as such deemed unfit to transport such heavy cargo all over the country" As mentioned earlier, the appellant in cross-examination was unable to impeach the contents of Exh.CW-1/2. It was argued by the appellant that the second survey was conducted after a number of years and was thus not reliable for ascertaining the exact loss. This plea is not acceptable. Naanjee & Co. was an independent surveyor and its report ought to carry more weight with the Court. In any event, Naanjee and Co. got the vehicle examined from Hino Frontier Motors (Pvt.) Limited and according to its expert opinion the vehicle even after extensive repairs would not become road worthy. This report coupled with the indisputable facts that the vehicle carrying huge amounts of diesel was burnt leads one to irresistible conclusion that it was a case of total loss and that Saddar-ud-Din Associates, the surveyor of the appellant, prepared a wrong and erroneous survey report, Exh.R-1, on which no reliance can be placed.

18. We accordingly hold that the respondent was able to discharge the onus of issue No. 1 which is accordingly decided in its

favour. Similarly, the appellant, in our opinion, did not discharge the onus which was placed on it under issue No. 4. It is decided against it.

1. The learned counsels for the parties did not address any arguments on the rest of the issues. The findings of the Insurance Tribunal on these issues are thus maintained.

2. In the result of our findings, we do not find any merit in this appeal which is accordingly dismissed with costs.

(M.M.R.) Appeal dismissed

PLJ 2020 Lahore 590

Present: Ch. Muhammad Iqbal, J.

AKHTAR ALI--Appellant

versus

MUHAMMAD YAAR--Respondent

EFA No. 9184 of 2019, heard on 26.2.2020.

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

----O.XXXVII, R. 2--Suit for recovery--Decreed--Default in payment--Execution application--Compromise between parties--Receiving of outstanding amount without objection--Consignment of execution--After the compromise the respondent make payment of agreed decreed amount--All the amounts were received by plaintiff /appellant without any objection and total agreed amount was received by him and there is nothing outstanding against respondent, as such, execution was rightly consigned to record room by executing Court after satisfaction of the decree, which does not suffer from any legal infirmity--Appeal dismissed. [P. 592] A

Mr. Abdul Rauf, Advocate, for Appellant.

Malik Muhammad Aslam, Advocate for Respondent.

Date of hearing: 26.2.2020.

Judgment

Through this Execution First Appeal, the appellant has challenged the vires of order dated 19.01.2019 whereby the learned executing Court consigned the file of execution petition to the record room after satisfaction of the decree.

1. Brief facts of the case are that the appellant / plaintiff filed suit for recovery of Rs. 15,00,000/- under Order XXXVII CPC on the basis of pronote. The said suit was decreed vide judgment & decree dated 5.12.2017. In the execution petition of the appellant a compromise was effected between: the parties with some terms and conditions. Under the said compromise the respondent / judgment debtor paid the settled amount whereafter the learned executing Court after satisfaction of the decree consigned the petition to the record room vide order dated 19.01.2019. Hence this appeal on the ground that the respondent/judgment debtor has not fulfilled the terms and conditions of the compromise, as such, main judgment & decree became restored for execution.

2. I have heard the arguments advanced by the learned counsels for both the parties and gone through the record with their able assistance.

6. The agreement was made between the parties which is available on record as Mark-A. For ready reference, operative part of the terms of the compromise (Mark-A) is reproduced as under:-

And the parties recorded their statements on 30.08.2018 which are as under:--

| | | --- | | | | | Urdu-2 |

After the compromise the respondent make payment of the agreed amount as detailed below:-

| | | | | --- | --- | --- | | Sr.No. | Date of payment | Amount | | 1 | 30.08.2018 | 340000 | | 2. | 22.09.2018 | 135000 | | 3. | 24.11.2018 | 220000 | | 4. | 21.12.2018 | 165000 | | 5. | 19.01.2019 | 90000 | | | Total | 9,50,000 |

All the above amounts were received by the plaintiff /appellant without any objection and in this way, total agreed amount was received by him and there is nothing outstanding against the respondent-, as such, execution was rightly consigned to the record room by the learned executing Court after satisfaction of the decree, which does not suffer from any legal infirmity.

1. As discussed above, this appeal has no merit and the same is hereby dismissed.

(Y.A.) Appeal dismissed

PLJ 2020 Lahore 593 (DB)

Present: Shahid Waheed and Ch. Muhammad Iqbal, JJ.

Khawaja MUHAMMAD NAYYER FARID, ADVCATE--Appellant

versus

GOVERNMENT OF PAKISTAN through Federal Law Minister--Respondents

I.C.A. No. 52698 of 2020 decided on 21.10.2020.

Constitution of Pakistan, 1973--

----Art. 198(3)-- Law Reforms Ordinance, 1972, S. 3--Correction in name of Lahore High Court as Punjab High Court--Constitutional petition--Dismissal--Challenge to--Powers of parliament to enact or amend laws--During course of arguments, appellant could not present any reasonable ground which could make basis to interfere with observation made by Single Judge--Appellant is a practicing advocate and it appears that he is not aware that under our constitutional scheme, parliament exercises sovereign power to enact or amend laws Constitution and no outside power or authority can issue a direction to enact or amend a particular piece of legislation--Name of High Court has been provided in Art. 198(3) of Constitution of Pakistan, 1973--High Court cannot issue direction for making any amendment in provisions of Constitution--Prayer made in instant appeal is misconceived and thus, appeal was dismissed. [P. 594] A

Appellant in Person.

Date of hearing: 21.10.2020.

Order

This Intra Court, Appeal under Section 3 of the Law Reforms Ordinance, 1972 calls into question the order dated 29th of September, 2020 passed by learned Single Judge in Chamber whereby the constitutional petition brought by the appellant under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, i.e. Writ Petition No. 46700 of 2020 was dismissed.

1. Prayer in the above said petition was that a direction be issued to the respondents to put their efforts for correcting the name of this Court and be defined as Punjab High Court. This prayer was declined by the learned Single Judge with the following observations:

“suffice to say that the prayer made in this petition, has no legal basis and the petitioner has not brought forth any issue which would compel this Court to exercise its constitutional jurisdiction. The jurisdiction of the High Court has been defined in the Constitution and does not matter whether the Court has been given one or the other name.”

3. During the course of arguments, the appellant could not present any reasonable ground which could make basis to interfere with the above cited observation made by the learned Single Judge. The appellant is a practicing advocate and it appears that he is not aware that under our constitutional scheme, Parliament exercises sovereign power to enact or amend laws/Constitution and no outside power or authority can issue a direction to enact or amend a particular piece of legislation. Name of this Court has be provided in Article 198(3) of the Constitution of the Islamic Republic of Pakistan, 1973. This Court cannot issue direction for making any amendment in the provisions of the Constitution. The prayer made in this appeal is misconceived and thus, the appeal is dismissed with costs of Rs. 10,000/- to be deposited by the appellant with the Lahore High Court Bar Dispensary.

(M.M.R.) Petition dismissed

PLJ 2020 Lahore 594[Multan Bench, Multan]

Present: Rasaal Hasan Syed, J.

MalikMUHAMMAD RAMZAN--Petitioner

versus

ADMINISTRATOR CHAIRMAN MARKET COMMITTEE DISTRICT RAJANPUR and another--Respondents

C.R. No. 990 of 2019, decided on 11.10.2019.

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

----Ss. 9 & 115, O.VII R. 10--Suit for declaration--Return of plaint--Appeal--Dismissed--Lawful allottee--Illegal interference in possession--Cancellation of allotment--Validity of order--Jurisdiction--Concurrent findings--Challenge to--On due consideration of reasons which prevailed with Courts below to order return of plaint and also relevant rules which have been relied for this purpose, it is observed that view taken by Courts below is based on misinterpretation of law--Section 9 of C.P.C. contemplates that civil Court shall have jurisdiction to try all suits of civil nature except of which cognizance is either expressly or impliedly barred--The scope of jurisdiction has remained subject-matter of consideration in various cases and consistent rule is that in first instance there should be an express or implied provision to bar jurisdiction of civil Court so as to oust interference of civil Court and that notwithstanding bar civil Court retains ultimate jurisdiction to examine if acts of such forums were in accordance with law or illegal or mala fide--Petitioner has challenged validity of cancellation order on ground that it was illegal without jurisdiction and against provisions of Statute and that Respondent No. 2 was unnecessarily extending cooperation to deprive petitioner of his alleged lawful title and possession of the, phatta (platform)--This being so prima facie jurisdiction of civil Court could not be deemed to be barred and it retains jurisdiction to examine acts and orders of Respondent No. 1 with a view to satisfy if me same are in conformity with statute under which it was passed and if authority had acted in accordance with provisions of statute or beyond its scope--Alleged provision providing a remedy of appeal which prima facie did not apply to situation or order as agitated in suit, could not debar civil Court from taking cognizance and examine matter as a Court of plenary jurisdiction to determine if orders under challenge were without jurisdiction or in accordance or inconformity with statute and if authority has not acted without lawful authority--Jurisdiction of Court was, therefore, neither barred nor plaint could be returned on such unwarranted assumptions--Impugned orders, therefore, suffer from serious error of law and jurisdiction and otherwise based on misunderstanding and misinterpretation of provisions of Market Committee Ordinance, 1978 as also Rules framed there under and therefore, same cannot be affirmed--Revision petition was allowed. [Pp. 597 & 598] A, B, C & D

1974 SCMR 356 and PLD 1958 SC (Pak.) 201.

Mr. Muhammad Faisal Bashir Chaudhary, Advocate for Petitioner.

Mr. Ahmad Nadeem Khan Chandia, Advocate for Respondents.

Date of hearing: 11.10.2019.

Order

Petitioner filed a suit claiming declaration to the effect that he was allottee, owner-in-possession of the phatta (platform); the respondent has no concern whatsoever with the same; the cancellation of Order No. 759/MCP/JP dated 16.1.2018, Letter No. 834/MCP/JP dated 06.4.2018 were illegal, ineffective and void ab initio and that based on the same the Respondent No. 1 shall be restrained from making interference in the possession of the petitioner. It is claimed that in compliance of the order of his Courtvide Letter No. 759/MCP/JP dated 16.1.2018 phatta was allotted to the petitioner; the petitioner was a license holder in terms of letter dated 07.3.2018; and that being a lawful allottee he was owner in possession of the phatta and further that the respondent intended to illegally dispossess the petitioner for which no notice was ever served and further that the letter issued for the purported cancellation was kept secret, which was illegal and that the respondent had acted beyond jurisdiction and intended to make illegal interference in the rights of the petitioner. The Respondent No. 2 resisted the suit by filing written statement and claimed that phatta (platform) in dispute was located between the Courtyard of petitioner's shop and the Fruit Market and that it was owned by the respondent and was reserved for the cultivators and dealers of the Fruit Market Committed. It was added that the phatta (platform) in issue remained in possession of Respondent No. 2 but few years before, it was illegally occupied by the petitioner who thereafter started frivolous litigation and that he had no right in the disputed place where the phatta existed. Respondent No. 1/Market Committee also filed its written statement claiming that the petitioner has no cause of action, the civil Court was not the proper forum for the relief, the petitioner had illegally sold the phatta (platform) and transferred the possession for which he had no right or moral justification and that the suit was not maintainable and further that the appeal lies under Rule 76 of Punjab Agricultural Produce Rules, 1979 and that the petitioner was guilty of violating the provisions of Punjab Agricultural Produce (Market) Ordinance, 1978 as also the rules framed thereunder and was thus not entitled to any relief.

1. Vide order dated 24.6.2019 the learned Civil Judge observed that the petitioner was claiming to be allottee of phatta and challenged the order of cancellation of Respondent No. 1 and the matter pertains to the Agricultural Produce Markets which was governed by Punjab Agricultural Produce (Market) Ordinance, 1979; appeal was permissible under the Act. The petitioner has not availed the remedy before the District Officer Revenue hence the plaint was liable to be returned. Accordingly, the plaint was ordered to be returned to the petitioner under Order VII, Rule 10, C.P.C. for presentation before proper forum.

2. In appeal filed by the petitioner, the learned Addl. District Judge observed that the Administrator passed a cancellation order, the relevant law provides for an appeal against the order of the Market Committee; DOR was entitled to hear the appeal which was the proper forum and that the plaint was liable to be returned for presentation before the proper forum. It was observed that the trial Court rightly directed the return of plaint which order did not call for any interference. Appeal as also the cross objections were therefore, dismissed. In the instant revision petition the orders of the Courts below are now under challenge.

3. Learned counsel for the petitioner questioned the legality of the orders by pleading that the civil Courts are legally competent to examine the acts and orders of the Public Authorities with a view to find out if they suffer from lack of jurisdiction or were against law and that the order was not appealable and further that the institution of the suit in civil Court was incorrectly questioned and the Courts below wrongly returned the plaint. Contrarily, learned counsel representing the respondents defended the impugned order and maintained that the suit could not have been instituted, the petitioner should have approached the competent forum which in their view was the appellate authority under the statute.

5. On due consideration of the reasons which prevailed with the Courts below to order return of plaint and also the relevant rules which have been relied for this purpose, it is observed that the view taken by the Courts below is based on misinterpretation of law. In this case, the stance taken by the petitioner was that he was lawful allottee in terms of the Order passed by this Court and that the order of allotment was issued in compliance to the directive issued in those proceedings and further that he had been lawfully possessing the phatta (platform) while the Respondent No. 1 did not have any justification to make any illegal interference in the possession and title and that the letter under challenge for the purported cancellation of the allotment was illegal, ab initio void and inoperative in law. The suit was for declaration with consequential relief. Section 9 of C.P.C. contemplates that civil Court shall have jurisdiction to try all suits of civil nature except of which the cognizance is either expressly or impliedly barred. The scope of jurisdiction has remained subject-matter of consideration in various cases and the consistent rule is that in the first instance there should be an express or implied provision to bar the jurisdiction of the civil Court so as to oust interference of the civil Court and that notwithstanding the bar the civil Court retains ultimate jurisdiction to examine if the acts of such forums were in accordance with law or illegal or mala fide. Reference can be made to the case “Hamid Hussain v. Government of West Pakistan and others” (1974 SCMR 356) where it was observed by the august Supreme Court to the effect that the civil Court being the Courts of plenary jurisdiction, under Section 9 of C.P.C. can make an inquiry as to the existence or otherwise of facts which gave exclusive jurisdiction to a Tribunal of special jurisdiction and that the well-established principle is that even where the jurisdiction of civil Court is barred and conferred upon the special tribunal, civil Court being the Courts of ultimate jurisdiction will have the jurisdiction to examine the acts of such forum to see whether their acts are in accordance with law or illegal or mala fide. Similarly, in the case of “Muhammad Tufail v. Abdul Ghafoor and others” [PLD 1958 SC (Pak) 201] it was observed that if the jurisdiction of civil Court is expressly barred in a case, the bar will be applicable to the orders passed in strict conformity with the provisions of statute and where this is not so, the civil Court cannot be denuded of its power of interference. It was further observed that the protection does not cover an order capriciously made or in flagrant breach of the statute given the protection and that it was well-settled that even if the jurisdiction is excluded the civil Court has jurisdiction to examine into case where the provisions of the act have not been complied with or the statutory tribunal had not acted in conformity with the fundamental principle of judicial procedure. In the instant case, the petitioner has challenged the validity of the cancellation order on the ground that it was illegal without jurisdiction and against the provisions of Statute and that the Respondent No. 2 was unnecessarily extending cooperation to deprive the petitioner of his alleged lawful title and possession of the, phatta (platform). This being so prima facie the jurisdiction of civil Court could not be deemed to be barred and it retains the jurisdiction to examine the acts and orders of Respondent No. 1 with a view to satisfy if me same are in conformity with the statute under which it was passed and if the authority had acted in accordance with the provisions of the statute or beyond its scope. The alleged provision providing a remedy of appeal which prima facie did not apply to the situation or the order as agitated in the suit, could not debar the civil Court from taking cognizance and examine the matter as a Court of plenary jurisdiction to determine if the orders under challenge were without jurisdiction or in accordance or inconformity with the statute and if the authority has not acted without lawful authority. The jurisdiction of the Court was, therefore, neither barred nor the plaint could be returned on such unwarranted assumptions.

6. The impugned orders, therefore, suffer from serious error of law and jurisdiction and otherwise based on misunderstanding and misinterpretation of the provisions of the Market Committee Ordinance, 1978 as also the Rules framed there under and therefore, the same cannot be affirmed.

1. Resultantly, the revision petition is allowed, the impugned orders are set aside, in result, the suit shall be deemed to be pending which will now be decided by the learned Civil Judge in accordance with law on its own merits and after framing proper issues, giving the opportunity of evidence to the parties. Being somewhat old matter, it is directed that the proceedings shall be held expeditiously so as to conclude the suit and decide it within four months.

(M.M.R.) Revision petition allowed

PLJ 2020 Lahore 599

Present: Raja Shahid Mehmood Abbasi, J.

MUHAMMAD TARIQ--Petitioner

versus

JUSTICE OF PEACE and others--Respondents

W.P. No. 40912 of 2020, decided on 30.9.2020.

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

----Ss. 22-A & 22-B--Pakistan Penal Code, 1860 (XLV of 1860), Ss. 337-A(i)/337-A(ii)/337-F(i), 148 & 149--Constitution of Pakistan, 1973, Art. 199--Direction to investigation officer to record version in accordance with law--Challenge to--Ex-officio Justice of Peace after going through said M.L.Cs., issued direction to investigating officer of said case to record version of Respondent No. 3--From impugned order it is quite clear that same has been passed in accordance with law--I seen no illegality in impugned order--Petition was dismissed.

[P. 600] A

Mr. Zubair Ahmad Kundi, Advocate for Petitioner.

Mr. Jam Khalid Fareed, A.A.G. for Respondents.

Mr. Shahid Rafiq Meo, Advocate for Respondent No. 3.

Date of hearing: 9.9.2020.

Order

Through the instant writ petition the petitioner assails the viresof order dated 7.9.2020 passed by learned Additional Sessions Judge Kasur, in his capacity as Ex-officio Justice of Peace, through which the application under Section 22-A/22-B, Cr.P.C. filed by Respondent No. 3 was directed to record the version of Respondent No. 3 and to proceed further in accordance with law.

2. I have heard learned counsel for the parties as well as learned Law Officer and observed that version of Respondent No. 3 was that his version is not being recorded by the Investigating Officer of case F.I.R. No. 147, dated 21.3.2019 registered under Section 337-A(i)/337-A(ii)/337-F(i)/148/149, PPC at Police Station Kot Radha Kishan District Kasur despite the fact that his application is duly supported by the M.L.Cs. of four injured PWs. The learned Ex-officio Justice of Peace after going through said M.L.Cs., issued direction to the Investigating Officer of said case to record version of Respondent No. 3. From the impugned order it is quite clear that the same has been passed in accordance with law. I seen no illegality in the impugned order. Consequently this petition has no force and the same is hereby dismissed.

(M.M.R.) Petition dismissed

PLJ 2020 Lahore 600

Present: Ch. Muhammad Masood Jahangir, J.

SUFI MUHAMMAD ASHIQ--Petitioner

versus

MUHAMMAD SHAFIQ--Respondent

C.R. No. 1485 of 2009, decided on 17.4.2019.

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

----S. 115--Specific Relief Act, 1877, S. 42--Declaratory suit--Dismissed--Appeal--Dismissed--Concurrent findings--Challenge to--Ostensible owner--Ingredients of--Benami transaction--Question of--Whether a particular transaction is benami or not--Determination--Onus to prove--Ingredients of motive for creation of benami transaction--Actual owner--Although, petitioner brought on record agreement to prove that house was purchased by him from Asghar Ali against a consideration but neither any of its witnesses nor vendor was examined to prove contents of contract as well as fact that amount referred therein was paid by petitioner--Moreover, sale price mentioned in Sale Deed (Ex:P2) was not matching with figure referred in contact (Ex:P1), as such this disparity was enough to disbelieve Ex:P1, especially when no explanation to this effect was narrated or explained in plaint as well as deposition by petitioner, hence he failed to prove first ingredient petitioner did not bring an iota of evidence to prove his possession over subject house, rather he before this Court being fair enough admitted that it was occupied by his son, so next ingredient also went against suitor--Ingredient of motive for creation of benami transaction was essential and relevant factor for purpose of determining, whether title vesting was merely a benami and absence of motive always goes against party claiming to be actual owner, thus heavy onus was on shoulders of petitioner to prove that he had purchased it, but for certain reasons ostensibly got it transferred to his son--It was neither case of petitioner that he was taxpayer, who ostensibly got transferred house in his son's name to evade taxes nor it was his stance that he had black money and to save himself from inquiries, benami transaction was effected in favour of respondent, even he failed to allege that his son was required to show himself to be owner of some immovable property for his benefit and disputed transaction was effected in his name and in absence thereof, impugned transaction could not be declared a sham one--For sake of argument, if stance of petitioner that for love and affection, house was purchased in name of his son, is taken as correct, even then it could not be dubbed as benami--Once having purchased when relations among father and son were amicable, former cannot turn around to claim him actual owner after relations became hostile and they fell apart--Counsel for petitioner has failed to point out any misreading and non-reading of material evidence available on record to render impugned judgments and decrees passed by two Courts below to be illegal, unlawful and without jurisdiction for calling interference by this Court in exercise of revisional jurisdiction--Petition was dismissed. [Pp. 602 & 603] A, B, C & D

Syed Ahmad Hussain Shah Naqvi, Advocate for Petitioner.

M/s. Muhammad Amin Ashraf Khan and Tahir Mehmood Mughal, Advocates for Respondent.

Date of hearing: 17.4.2019.

Judgment

The father/petitioner instituted declaratory suit against his son/respondent to claim that Sale Deed of 27th July, 1999 was ostensibly attested in favour of the latter, whereas former was actual owner of the subject house, which was defended with the stance that house was purchased by the defendant through his own funds. The final result of the trial was that suit was dismissed and so was the fate of Appeal, hence this Civil Revision to call in question the legality of unanimous decrees of the learned Courts below.

1. The question whether a particular transaction is benami or not, is largely one of the facts and for its determination, no absolute formula or test has been laid down, but while seeking guidance from the dicta laid down in judgment reported as “Muhammad Sajjad vs. Muhamamd Anwar” (1991 SCMR 703), the following elements are to be proved by a quester.

i. Source of consideration;

ii. From whose custody original title deed came;

iii. Who is in possession of the property; and

iv. Motive of benami

These essential elements must co-exist for proving benami transaction between the ostensible owner and actual purchaser, who bought it through his own funds in the name of ostensible owner for certain reasons/motive to gain ultimate benefits.

The basic onus was upon the petitioner to prove the aforenoted ingredients. Although, the petitioner brought on record agreement (Ex:P1) dated 26 March, 1999 to prove that the house was purchased by him from Asghar Ali against a consideration of Rs. 4,10,000/-, but neither any of its witnesses nor the vendor was examined to prove the contents of the contract as well as the fact that amount referred therein was paid by the petitioner. Moreover, the sale price mentioned in Sale Deed (Ex:P2) was not matching with the figure referred in the contact (Ex:P1), as such this disparity was enough to disbelieve Ex:P1, especially when no explanation to this effect was narrated or explained in the plaint as well as deposition by the petitioner, hence he failed to prove the first ingredient. The petitioner did not bring an iota of evidence to prove his possession over the subject house, rather he before this Court being fair enough admitted that it was occupied by his son, so the next ingredient also went against the suitor. The real setback of the case of the latter was that he omitted to plead and prove the motive why the subject house was ostensibly purchased in the name of respondent, rather only mentioned therein that for love and affection it was done so. The ingredient of motive for creation of benami transaction was essential and relevant factor for the purpose of determining, whether title vesting was merely a benami and absence of motive always goes against the party claiming to be actual owner, thus heavy onus was on the shoulders of petitioner to prove that he had purchased it, but for certain reasons ostensibly got it transferred to his son. It was neither the case of petitioner that he was taxpayer, who ostensibly got transferred the house in his son's name to evade the taxes nor it was his stance that he had black money and to save

himself from the inquiries, benami transaction was effected in favour of respondent, even he failed to allege that his son was required to show himself to be owner of some immovable property for his benefit and the disputed transaction was effected in his name and in absence thereof, the impugned transaction could not be declared a sham one.

3. For the sake of argument, if stance of the petitioner that for love and affection, the house was purchased in the name of his son, is taken as correct, even then it could not be dubbed as benami. Once having purchased when relations among father and son were amicable, the former cannot turn around to claim him actual owner after relations became hostile and they fell apart.

4. The learned counsel for the petitioner has failed to point out any misreading and non-reading of the material evidence available on the record to render the impugned judgments and decrees passed by the two Courts below to be illegal, unlawful and without jurisdiction for calling interference by this Court in the exercise of revisional jurisdiction. Consequently, the instant revision petition being devoid of any merit is hereby dismissed.

(M.M.R.) Petition Dismissed

PLJ 2020 Lahore 603

Present: Shahid Bilal Hassan, J.

MUHAMMAD ALI, etc.--Petitioners

versus

ZUHRA BIBI, etc.--Respondents

C.R. No. 521 of 2016, decided on 13.2.2019.

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

----S. 115--Specific Relief Act, (I of 1877), S. 12--Suit for declaration--Decreed--Appeal--Dismissed--Concurrent findings--Challenge to--Non-availability of trust worthy evidence--No consideration amount was either paid or received--Main controversy between parties is reflected in issues No. 8 & 9 framed by learned Trial Court i.e. to effect whether mutations are against law and facts, are ineffective and inoperative upon rights of plaintiff and are liable to be cancelled and whether plaintiff is-entitled for decree of declaration as prayed for--Admittedly, Petitioner No. 1 and Respondent No. 1 are real brother and sister being off springs of Hayat s/o Salam, original owner--After death of Hayat, his property was to be devolved upon his legal heirs, which needful was done but not to extent of Respondent No. 1 despite fact that she became owner of 7/48 in legacy of her deceased father--It was stance of petitioners that Respondent No. 1 alienated her share to petitioners through sale mutation but for proving said fact, petitioners were bound to lead strong, cogent and trust-worthy evidence keeping in view fact that Respondent No. 1 was an illiterate lady and any transaction with regards to sale exchange etc. by an illiterate person especially a lady, strong evidence is required from beneficiary i.e. petitioners--Though, Halqa Patwari was produced as D.W-2 but Tehsildar was not produced to verify impugned mutation--Only one witness of impugned mutation was produced as D.W-4, who in his cross-examination submitted that he did not recognize Respondent No. 1 personally--Admittedly, in such like cases proving of Consideration is very vital--D.W-2 i.e. Halqa Patwari in his cross-examination submitted that no consideration was either paid or received before him by Respondent No. 1--Other witnesses except D.W-3 were silent with regards to said consideration--It is observed that, in response to each and every issue of case with regards to evidence produced by parties has been scanned by Courts below--There appears no misreading and non-reading of evidence--Both Courts below have passed impugned judgments and decrees strictly in accordance with law--Civil revision was dismissed. [P. 606] A & B

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

----O.XLI R. 27--Closing of evidence--Application for production of witness--Dismissal of--Importantly, dismissal of application under section XLI Rule 27 C.P.C. by Appellate Court is strictly in accordance with law--Petitioners closed their evidence and at relevant time they did not either request Court for production of any witness before said Court after having recorded six witnesses; therefore observations given in order whereby application of petitioners under Order XLI Rule 27 C.P.C. was dismissed were upheld being in accordance with law. [P. 606] C

1996 CLC 650 Lahore.

Rana Zia Abdul Rehman and Mr. Muhammad Amir Javed Bhatti, Advocate for Petitioners.

Mr. Abdul Khaliq Safrani, Advocate for Respondents.

Date of hearing: 13.2.2019.

Order

Briefly, Respondent No. 1/Mst. Zuhra Bibi filed a suit for declaration with consequential relief against the present petitioners and Respondents No. 2 to 5 with the assertions that mutations No. 431 dated 21.01.1991, 1080 and 1081 dated 31.12.2002 be declared as nullity with regards to her entitlement. Further maintained that originally the dispute between the parties arose on the death of Hayat s/o Salam, who was owner of land measuring 159-kanals and 09-marlas bearing Khewat No. 73 and 20-kanals and 5-marlas bearing Khewat No. 130 situated at Mauza Udooki, Tehsil & District Hafizabad as per register Haq Daran-e-Zamin for the year 1987-88. After the death of said Hayat, it was the stance of Respondent No. 1 that she herself and petitioners, Ameen Bibi and Sardaran Bibi became sole owners of the said property being the surviving legal heirs and resultantly, she was entitled 7/48 share in the suit property. When she came to attend Chehlum ceremony of her deceased father at Mauza Udooki in the year 1991, she was asked by the petitioners i.e. her real brothers so as to accompany them to get entered mutation of inheritance of the deceased Hayat in the revenue record and for the said purpose, she appeared before Halqa Patwari, where her photograph was taken and her thumb impressions were also obtained on certain papers. She did the said with the view to be incorporated as legal heir of deceased Hayat but the petitioners in connivance with the revenue officials got the said mutation in their favour, which is nothing else but an outcome of fraud and misrepresentation. In furtherance, the petitioners have also alienated the disputed land in favour of two respondents through mutations No. 1080, 1081 dated 31.12.2002, resultantly the suit was filed for getting the said mutations declared as null and void being ineffective qua the rights of Respondent No. 1 being actual owner of the property to the extent of her share mentioned hereinbefore.

In response to the said suit, the petitioners and respondents appeared and contested the suit. Out of the divergent pleadings of the parties, learned Trial Court framed as many as ten issues including “Relief and asked the parties to get their evidence recorded, which needful was done and resultantly, the suit of Respondent No. 1 was decreed by the learned Trial Court vide impugned judgment and decree dated 02.02.2013 by declaring mutations No. 1080 and 1081 dated 31.12.2002 as void subject to the condition that share of Respondent No. 1 is delivered to her from the property of deceased namely Hayat in terms of mutation No. 431 dated 21.01.1991. Aggrieved of the said judgment and decree, the petitioners opted to prefer an appeal, which needful was done and the learned Court of Appeal after hearing both the sides at length dismissed the appeal of the petitioners vide impugned judgment and decree dated 20.01.2016, Hence, the instant civil revision.

1. Heard.

3. The main controversy between the parties is reflected in issues No. 8 & 9 framed by the learned Trial Court i.e. to the effect whether the mutation No. 431, dated 21-1-1991 and mutation No. 1080 and 1081 dated 31-12-2002 are against the law and facts, are ineffective and inoperative upon the rights of plaintiff and are liable to be cancelled and whether the plaintiff is-entitled for the decree of declaration as prayed for. In response to these issues and the other issues framed by the learned Trial Court, both the parties led their evidence, oral as well as documentary in support of their respective stance. Admittedly, the Petitioner No. 1 and Respondent No. 1 are real brother and sister being off springs of Hayat s/o Salam, the original owner. After the death of Hayat, his property was to be devolved upon his legal heirs, which needful was done but not to the extent of Respondent No. 1 despite the fact that she became owner of 7/48 in the legacy of her deceased father. It was the stance of the petitioners that the Respondent No. 1 alienated her share to the petitioners through sale mutation dated 21.01.91 but for proving the said fact, the petitioners were bound to lead strong, cogent and trust-worthy evidence keeping in view the fact that Respondent No. 1 was an illiterate lady and any transaction with regards to sale exchange etc. by an illiterate person especially a lady, strong evidence is required from the beneficiary i.e. the petitioners. Though, the Halqa Patwari was produced as D.W-2 but Tehsildar was not produced to verify the impugned mutation. Only one witness of the impugned mutation was produced as D.W-4, who in his cross-examination submitted that he did not recognize the Respondent No. 1 personally. Admittedly, in such like cases proving of Consideration is very vital. D.W-2 i.e. Halqa Patwari in his cross-examination submitted that no consideration was either paid or received before him by the Respondent No. 1. The other witnesses except D.W-3 were silent with regards to the said consideration. It is observed that, in response to each and every issue of the case with regards to evidence produced by the parties has been scanned by the learned Courts below. There appears no misreading and non-reading of evidence. Both the learned Courts below have passed the impugned judgments and decrees strictly in accordance with law.

4. Importantly, dismissal of the application under section XLI Rule 27 C.P.C. by the learned Appellate Court is strictly in accordance with law. The petitioners closed their evidence on 20.11.2012 and at

the relevant time they did not either request the Court for production of any witness before the said Court after having recorded six witnesses; therefore the observations given in the order dated 20.01.2016, whereby application of the petitioners under Order XLI Rule 27 C.P.C. was dismissed are upheld being in accordance with law.

1. Case law reported as Hassan and another v. Hussain (1996 CLC 650-Lahore) relied upon by the learned counsel for the petitioners, with utmost respect to the same, has no relevance to the peculiar facts and circumstances of the case in hand and is distinguishable, thus it does not render any assistance or help to the petitioners’ case.

2. For the foregoing reasons, there appears no illegality and irregularity as well as wrong exercise of jurisdiction in the impugned judgments and decrees passed by the learned Courts below warranting interference by this Court in exercise of supervisory revisional jurisdiction. Resultantly, the civil revision in hand, being without any force and substance stands dismissed. No order as to costs.

(M.M.R.) Civil revision was dismissed

PLJ 2020 Lahore 607[Rawalpindi Bench Rawalpindi]

Present: Abid Aziz Sheikh, J.

Syed QAISER ABBAS SHIRAZI--Petitioner

versus

PAKISTAN BAR COUNCIL through Secretary, Islamabad and 2 others--Respondents

W.P. No. 2843 of 2020, decided on 23.11.2020.

Constitution of Pakistan, 1973--

----S. 199--Legal Practitioners & Bar Council Act, 1973, S. 55--Pakistan Legal Practitioners & Bar Councils Rules, 1974, Rr. 22(2)(b) & 25(3)--Transparent election--Amendment in rules--Vires of amendment--Challenge to--Maintainability of--Rules are admittedly not made by Govt. or with the approval of Govt. rather same are made by Pakistan Bar Council under Section 55 of the Act--For the purpose of maintainability of this constitutional petition, the first question will be whether these rules are of statutory nature and secondly whether Pakistan Bar Council and Punjab Bar Council are performing functions in connection with the affairs of Federation, Provinces or Local Authorities and as such amenable to constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution)--Neither impugned rules are statutory nor Pakistan Bar Council and Punjab Bar Council are amenable to constitutional jurisdiction of this Court--Therefore, preliminary objection was sustained.

[Pp. 610 & 613] A & B

2020 SCMR 631.

M/s. Hassan Raza Pasha and Raja Saad Mazhar, Advocate for Petitioner.

Mr. Nayyar Abbas Awan, Assistant Attorney General alongwith Gulzar Ahmad, Assistant Secretary, Pakistan Bar Council.

Mirza Asif Abbas, Assistant Advocate General, Punjab for State.

Date of hearing: 23.11.2020.

Order

Through this constitutional petition, the petitioner has challenged the vires of amendment made on 16.9.2020 in Rule 14 of Pakistan Legal Practitioner and Bar Council Rules, 1976 (Rules) and for issuing direction to the respondents to issue ballet paper to the voters/members in accordance with sub-Rule 2(b) of the Rule 22 of the rules.

1. Relevant facts are that Respondent No. 2 finalized and published the final list of contesting candidates for the election of members of Punjab Bar Council for 2021-2025 on 03.11.2020. The Advocate General, Punjab while exercising power of Returning Officer of ensuing election of Punjab Bar Council declared that polling will be held on 28.11.2020. The grievance of the petitioner is that previously ballet papers were used to be prepared in such an manner that a voter record his vote on the ballet paper by putting “cross” or “tick” against the name of candidate for whom, he intended to vote. However, after making impugned amendments in Rule 14 of the rules, pattern of ballot paper has been designed in such a way, that serial number and name of candidates in blank column shall be put by voters instead of merely cross and tick. At the time of filing of this constitutional petition, the main contention of the petitioner was that though Rule 14 of the rules was amended, however, Rule 22(2)(b) and Rule 25(3) of the Rules were not amended, therefore, merely on the basis of guidelines by Pakistan Bar Council, the requirement of said rules could not be dispensed with. However, during pendency of this writ petition, Rule 22(2)(b) and Rule 25(3) was also amended by Pakistan Bar Council through notification dated 21.11.2020 apparently to make these rules inconformity with amendment in Rule 14 of the rules. Though the petitioner has not specifically challenged in this petition the said subsequent amendments in 22(2)(b) and 25(3) of the rules, however, he submits that as amendments were made during pendency of this writ petition, therefore, as per settled law even without making any necessary amendment in the writ petition, he can argue on the legality on these amended rules as well.

2. Learned counsel for the petitioner argued that amendment in Rule 14 of the rules is not bonafide but only to facilitate certain candidates. He submits that if said amendment will remain intact, there will be no secrecy of ballet. Further submits that replacing the process from “cross or tick” to insert name of candidate by voters will be time consuming and not practical. On the amended notification dated 21.11.2020, he submits that amendment in Rule 22(2)(b) and Rule 25(3) of the rules cannot be applied retrospectively as election schedule was announced on 05.9.2020. He further submits that amendments are not yet been confirmed in meeting of Pakistan Bar Council under rule 91 of the Rules, therefore, the same has no legal effect as yet. On the question of maintainability of writ petition, he submits that not only the Pakistan Bar Council and Punjab Bar Council (respondents) are statutory bodies but even the rules framed by them are under the provision of legal practitioner and Bar Council Act, 1973 (Act), therefore, the impugned rules being statutory, this constitutional petition is maintainable.

3. Learned Law Officers on the other hand raised preliminary objection to the maintainability of this writ petition on the ground that impugned rules are neither framed by the Government or with the approval of government but merely by Pakistan Bar Council under Section 55 of the Act, therefore, these rules does not have any statutory force. Further submits that Pakistan Bar Council or Punjab Bar Council do not fulfill the requirements of “functional test”, hence not amenable to the constitutional jurisdiction of this Court. They placed reliance on Mirza Muhammad Nazakat Baig vs. Federation of Pakistan etc (2020 SCMR 631) and Abdul Sattar Chughtai Malik vs. Pakistan Bar Council through Secretary and another (PLD 2007 Lahore 170). On merits, they submit that to ensure transparent election, Rule 14 of the rules was amended on 16.9.2020, whereby the ballet papers were to be supplied by the Returning Officer in accordance with directions and guidelines issued by Pakistan Bar Council and to resolve any ambiguity and bring conformity in the rules, Rule 22(2)(b) and Rule 25(3) of the rules were also amended through notification dated 21.11.2020. Submit that requirement of rule 91 of the Rules is merely a formality which will be done in due course. He submits that elections are yet to take place on 28.11.2020, therefore, these amendments are not being applied retrospectively. He adds that these amendments are within the competency of Pakistan Bar Council under Section 55 of the Act and same being procedural does not affect the election schedule in any manner.

5. Arguments heard. Before touching merits of the case, I would like to decide the threshold question of maintainability of this writ petition. Mainly the petitioner has challenged the vires of amendment made in Rule 14 in the rules and subsequent amendments made in Rule 22(2)(b) and Rule 25(3) of the rules. These rules are admittedly not made by government or with the approval of government rather same are made by Pakistan Bar Council under Section 55 of the Act. For the purpose of maintainability of this constitutional petition, the first question will be whether these rules are of statutory nature and secondly whether Pakistan Bar Council and Punjab Bar Council are performing functions in connection with the affairs of Federation, Provinces or Local Authorities and as such amenable to constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution).

1. The above legal questions have already been decided by Hon’ble Supreme Court in recent reported judgment Mirza Muhammad Nazakat Baig vs. Federation of Pakistan etc. (2020 SCMR 631). In the said case, the vires of rule 9 of the Supreme Court Bar Association Rules, 1989 (Rules of 1989), were challenged. The said Rule of 1989 were also framed by Pakistan Bar Council under Section 55 of the Act in same manner as impugned rules are framed. The Hon’ble Supreme Court in afore-noted judgment held that neither the Rules of 1989 were statutory nor the Pakistan Bar Council or Provincial Bar Councils fulfilled the requirement of functional test, hence not amenable to the jurisdiction of this Court under Article 199 of the Constitution. Relevant observation of Hon’ble Supreme Court are reproduced hereunder:

“A bare reading of the provisions of the Legal Practitioners and Bar Councils Act shows that the Act provides for establishment of Bar Councils in the Provinces as well as the Islamabad Capital Territory. It deals with all matters relating to elections of office bearers, disciplinary and other professional matters, constitution of committees, their powers and other related and incidental matters. However, it is clear that other than the Attorney General for Pakistan being the ex-officio, Chairman Pakistan Bar Council and Advocates Generals of the Provinces and Islamabad Capital Territory being ex-officio, Chairman of the Provincial Bar Councils and Islamabad Capital Territory neither the Provincial nor the Federal Government exercise any administrative control over the affairs of the Pakistan Bar Council or the Provincial Bar Councils. Pakistan Bar Council is a statutory body which is autonomous and generates its own funds independently. The Government does not have any control over it. Likewise, the Islamabad Bar Council acts as a regulator for affairs of the Advocates in Islamabad Capital Territory, admits Advocates to practice before the said High Court and maintains rolls of such Advocates. The functions of the Council also inter alia include initiating proceedings for misconduct against Advocates on its rolls and award punishment in such cases. That being so, neither the Respondent nor any of its constituents or committees can be regarded as persons performing functions in connection with the affairs of the Federation, Provinces or Local Authority within the contemplation of the Article 199 of the Constitution of Islamic Republic of Pakistan. As such we are in no manner of doubt that Respondent No. 2 is not amenable to the jurisdiction of the High Court in terms of Article 199 of the Constitution …………

The next question that needs to be addressed is whether the Supreme Court Bar Association of Pakistan Rules, 1989 are statutory in nature which is yet another reason that correctly prevailed with the learned Division Bench of the High Court in recording a finding that the constitutional jurisdiction cannot be invoked against the Supreme Court Bar Association. This question came up for hearing before a Division Bench of the Lahore High Court in the case of Abdul Sattar Chughtai Malik v. Pakistan Bar Council through Secretary and another PLD 2007 Lahore 170). The following excerpt from the said judgment elaborates correctly interprets the law on the subject and is reproduced below:-

“8. The rules are not statutory in nature, therefore, any violation of the statutes, regulations or rules would not attract the Constitutional jurisdiction of this Court under Article 199 of the Constitution. In this context reference can be made to the cakes of Dr. M. Afzal Beg v. University of Punjab and others (1999 PLC (C.S.) 60), Khalid Hussain v. The Chancellor, (Governor of Punjab) and others (NLR 1995 CLJ 219), Muhammad Umar Malik v. The Muslim Commercial Bank through its President, Karachi and 2 others (1995 SCMR 453) and Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194).

1. The Parliament is the law-making authority. It passes the Acts and empowers the Government under the relevant Act to make Rules for carrying on the business. A statute is the formal “expression” in writing of the will of the legislative organ in a State. A “Statute’ is a declaration of the law, as it exists or as shall be from the time at which such statute is, to take effect. It is usually called an Act of the Legislature. It expresses the collective will of that body. A Statute is the highest constitutional formulation of law, the means by which supreme legislature, after the fullest deliberation expresses its final will.

2. “Statute law” is defined as the will of the nation, expressed by the Legislature, expounded by the Courts of Justice. If the Parliament is not in session then the laws are enforced through the Ordinances issued by the President or the Governor expressing will of the nation as the case may be. So, the Act passed by the Parliament and the Ordinance issued by the nation would be called the “Statutory Law”.

3. The Rules framed under the powers conferred by an Act are integral part of the Act and these Rules are called Statutory Rules and these are held to be part of the parent Act. It can do anything if within its scope. The Rules or the Bye-Laws made under the Statutes or Act cannot over ride the provisions of other Statute. Neither the Rules control the construction to be placed on the provisions of the Act nor they can enlarge the meaning of the section. The Rules are framed under the Act in aid to construction of ambiguous Statutes. The Rules under the Act shall be made by the Authority, empowered under the Act to frame the Rules or Bye-Laws. No other authority who is not empowered under the Act make the Rules. A Rule Making Body also cannot frame the Rules in conflict with or derogating from the substantive provisions of law or Statute under which the Rules are framed.

4. The Supreme Court Bar Association is a Body, the Organization of lawyers, who are entitled to practise in the Supreme Court of Pakistan it has not been constituted under any Act of the Parliament. It is a non-statutory body, therefore, conditions or rules framed by this body would also be non-statutory rules and having no legal backing. The writ petition under Article 199 of the Constitution against a body, organization not constituted under the law would not be competent.”

……..

Learned counsel for the appellant was unable to persuade us to take a contrary view than the one taken by the Islamabad High Court in the impugned judgment, by the Lahore High Court in the afore-noted judgment, and by this Court in a number of judgments including Abdul Sattar Chughtai Malik, v. Pakistan Bar Council through Secretary and another (PLD 2007 Lahore 170), Muhammad Tariq Badr and another v. National Bank of Pakistan and others (2013 SCMR 314), Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others (PLD 2016 SC 377) and Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation. Wing), Islamabad and others (2017 SCMR 571). Further, the learned counsel for the appellant has not been able to demonstrate or point to any legal, procedural or jurisdictional error, defect or flaw in the reasoning and exposition of law undertaken by the Islamabad High Court in the impugned judgment. After carefully going through the provisions of the Legal Practitioners and Bar Councils Act, 1973 as well as the Supreme Court Bar Association of Pakistan Rules, 1989, we have arrived at the same conclusions as the learned High Court and find no reason to interfere in the impugned judgment”.

(emphasis supplied)

7. In view of law settled by Hon’ble Supreme Court in Mirza Muhammad Nazakat Baig supra, neither impugned rules are statutory nor Pakistan Bar Council and Punjab Bar Council are amenable to constitutional jurisdiction of this Court. Therefore, the preliminary objection is sustained and (without commenting on the merits of case, lest it may prejudice the case of either party), this constitutional petition is dismissed being not maintainable.

(M.M.R.) Petition dismissed

PLJ 2020 Lahore 614

Present: Muhammad Ameer Bhatti, J.

IJAZ HUSSAIN etc.--Petitioners

versus

QAISAR MAHMOOD etc.--Respondents

W.P. No. 11040 of 2011, decided on 4.6.2020.

Constitution of Pakistan, 1973--

----Art. 199--Pre-emption suit--Decreed on basis of compromise--Application for review of order for correction and incorporation of direction--Rectification of omission--Application regarding seeking extension of time to deposit amount--Rejected--Revision petition--Allowed--Duty of trial Court--It is not denied by counsel for petitioners that earlier order was erroneous in nature as neither amount was mentioned therein nor time was fixed for deposit of purchase amount--Another mistake surfaced when trial Court lost sight of fate of zar-e-soam and in such an eventuality refusal to extend time was neither legally justified nor sustainable in eye of law--Trial Court, in essence, had committed default to calculate decretal amount and in such eventuality it was obligation of trial Court to extend time under principle “act of Court prejudice none”--Trial Court failed to fulfill its obligation by not granting time when it made correction in price of land--A demand of written request for extension of time was neither conscionable justified nor in accordance with law--It was solemn duty of trial Court, while making correction in order and decree to extend time itself already consumed for deposit of corrected amount/price of decreed land--Petition was dismissed. [Pp. 617 & 620] A, B & C

1999 SCMR 342, 1986 SCMR 849 and 1974 SCMR 24 ref.

Mr. Abdul Wahid Ch., Advocate for Petitioners.

M/s. Iqbal Ahmad Khan, Malik Muhammad Luqman and Nadeem Ahmad Khan, Advocates for Respondents.

Date of hearing: 4.6.2020.

Judgment

The petitioners have called-in-question the judgment dated 10.03.2011 passed by the learned Addl. District Judge whereby revision petition filed by the respondents was accepted and time of 30-days for deposit of the decretal amount was granted.

1. The relevant facts, which form the background, are that the pre-emption suit filed by the respondents regarding land measuring 13-Kanals, 2-Marlas situated in Chak No. 11 Village Sahjowal was decreed on the basis of compromise arrived at between the parties to the extent of half of the land. However, the learned trial Court while passing the decree on 17.01.2006 recorded the order in the following terms:

“Both the parties have entered into a compromise and have given statements. The respective statements have been recorded. Both the parties have agreed that the instant suit be decreed to the extent of 6-Kanal 13-Marlas from the suit property. The plaintiff has withdrawn his claim regarding the remaining suit property. In light of the statement of the parties the instant suit is hereby decreed in favour of the plaintiff to the extent of six kanal 13-marlas out of the suit property. The suit to the extent of remaining suit property stands dismissed as withdrawn. The plaintiff is entitled to recover Zar-e-Soim deposited by him in the instant suit titled Nazar Hussain vs. Ijaz Hussain etc. Parties bear their own cost. File be consigned to the record room after its due completion.”

The plaintiff filed an application for review of the order dated 17.1.2006 for correction and incorporation of direction therein to deposit the price of decreed land less the amount of zar-e-soam stipulating the time. Since the obscure order dated 17.01.2006 did not contain all embracing pre-requisites needful for the purpose; the learned trial Court rectified its omissions essential for a valid decree; and reviewed the said order to the following effect:

“Present: The review application has been accepted and the decree is hereby modified to the effect that the price of suit property of 13 kanal was alleged in the suit to be 90000/- rupees. In light of which the value of the property decreed being 6 kanals 13 marlas is approximately 66807/- rupees. Plaintiff is directed to deposit the said amount within 30 days from 25.09.2006 in case of default the suit will stand dismissed”.

Accordingly the decree was also prepared in the following manner:

“ORDER: The review application has been accepted and the decree is hereby modified to the effect that the price of suit property of 13 kanal was alleged in the suit to be 90000/- rupees. In light of which the value of the property decreed being 6 kanals 13 marlas is approximately 66807/- rupees. Plaintiff is directed to deposit the said amount within 30 days from 25.09.2006 in case of default the suit will stand dismissed.

Second application to correct the decretal amount as Rs. 66807/- instead of Rs. 45687.023 less the zar-e-soam was although allowed yet it did not find mention concerning deduction of zar-e-soam and accordingly on the same decree sheet following words were added:

“Value of 6-K-13M corrected to be Rs. 45687.023 as per order of review application dated 10.2.2007.”

1. It is added that extension of time to deposit the corrected amount was refused merely on account of the nonavailability of written request. Thereafter plaintiffs/respondents’ filed another application seeking extension of time to deposit the amount so ascertained; which was also rejected. The plaintiffs/respondents, feeling aggrieved, preferred a revision petition which was allowed and the respondents/plaintiffs were permitted to deposit the pre-emption amount of Rs. 45687.023/- less already deposited zare-e-soam; hence this revision petition.

2. The learned counsel for the petitioners comes out with contention that learned Revisional Court erred in law while granting time to deposit the decretal amount after lapse of the stipulated time. Further maintained that the respondents had the knowledge of amount decreed by the learned trial Court although it was excessive and erroneously calculated but plaintiffs/respondents’ were obliged to deposit that amount in the first instance and thereafter entitled to file the application for its correction with a view to return of the excess amount; hence non- compliance of order within stipulated time constitutes punitive action to divest them of any relief. Since the prime obligation of deposit of decretal amount had not been fulfilled within the stipulated time, therefore, an application for extension of time should have been filed at the relevant time, together with the application for correction of order/decree; and that application on account of non-availability of their request for extension of time was rightly turned down. He emphatically added that subsequent application for extension of time was also rightly rejected by the learned trial Court but the same was allowed by the learned Revisional Court in contravention with the principles laid down in Muhammad Shabbir and others vs. Bashir Ahmad (1974 SCMR 24), Bhai Khan vs. Allah Bakhsh and another (1986 SCMR 849), Mst. Sahib Khatoon vs. Allah Ditta and 10 others (1994 SCMR 2002) and Assar Ali Shah through L.Rs. and 4 others vs. Syed Muzaffar Din Shah and 4 others (2007 SCMR 724).

3. On the other hand, learned counsel for the respondents resisted the such contentions on the premise that the application for correction of decretal amount would serve the purpose as it necessitated extension of time even without written prayer of the petitioners; hence it was incumbent upon the Court while correcting amount of decree to grant another opportunity for its deposit by allowing reasonable time; which was overlooked to constrain them to file another application for grant of time which was paradoxically refused by the learned trial Court; thus, learned Revisional Court justifiably granted the permission while rectifying the error perpetuated by the trial Court to deposit of decretal amount.

4. I have heard learned counsel for the parties and gone through record of the case with their able assistance.

7. It is not denied by the learned counsel for the petitioners that the earlier order was erroneous in nature as neither the amount was mentioned therein nor the time was fixed for deposit of the purchase amount. However, this order was corrected by the learned trial Court on plaintiffs’ application but this time error in calculating the price of the land was committed followed by another application moved within time already stipulated and price of the land was corrected. This time another mistake surfaced when the trial Court lost sight of the fate of zar-e-soam and in such an eventuality refusal to extend time was neither legally justified nor sustainable in the eye of law. Learned trial Court, in essence, had committed default to calculate the decretal amount and in such eventuality it was obligation of the learned trial Court to extend time under the principle “act of Court prejudice none”. Learned trial Court failed to fulfill its obligation by not granting time when it made correction in the price of land. It is noticed that error in calculating the amount was floating on the surface of the order, which entailed the consequence that this error which was liable to be corrected by the learned trial Court, nonetheless a demand to deposit the amount within the time already stipulated and elapsed before making such correction cannot make sense nor will serve the ends of substantial justice.

1. Despite the fact that application for its correction moved by the respondents was allowed and it was a just and equitable ground for extension of time to deposit the amount to be fixed by the learned trial Court, by not exercising this power, had committed material illegality and irregularity, providing justification to the learned Revisional Court to exercise its jurisdiction provided under the law for granting the time to deposit the amount of Rs. 45,687.023 less already deposited amount of zar-e-soam. In such eventuality, the learned Revisional Court has not committed any illegality or irregularity. The order of the learned Revisional Court is in consonance with the law and I am fortified in this regard by the dicta laid down by Hon’ble Supreme Court in a case reported as Nazir Ahmad and another vs. Abdullah 1999 SCMR 342 wherein it was held as under:

“The crucial point in the case is; as to whether, the plaintiff/appellant intentionally failed to comply with the deposit order or whether there was some plausible and valid reason which resulted in his failure to deposit Rs. 40 less than that he was required to do so. It is borne out from the above narration of facts that at the first instance he deposited Rs. 2,000 and then Rs. 12,200 according to direction of the Court well within time. Similarly, in obedience to the final order the plaintiff deposited Rs. 56,960 much before the fixed date. The mistake occurred when the case was sent from Multan to Shuja Abad where the learned Judge noticed that 1/5th amount of the sale price mentioned in Mutation No. 95 has not been deposited; so by order, dated 30.07.1974 he directed the plaintiff to deposit 1/5th of the sale price amounting to Rs. 12,200/- before 2.10.1974. The learned Judge mistook the sale price mentioned in the said mutation as Rs. 61,000/- instead of Rs. 61,200/- and by this inadvertent mistake calculated 1/5th as Rs. 12,200/-instead of Rs. 12,240. This short fall of Rs. 40, thus, resulted because the learned Judge miscalculated Zar-e-Panjum and for that reason wrote Rs. 12,200 in the order-sheet to be deposited before the given date. So, it is to be seen as to whether it is inflexible rule of universal application that the deficiency in deposit of pre-emption money which occurred because of miscalculation or through other error made by the Court is not excusable at all or it can be condoned on the principle that no one should suffer because of any error of the Court or because neither the mistake was willful nor it was on account of any fault of the person concerned. It was ruled in Bhai Khan v. Allah Bakhsh and another (1986 SMCR 849); “Order XX, Rule 14--pre-emption suit--Extension of time for deposit of pre-emption amount--Appellate Court, held, could extend time for deposit of pre-emption amount both during pendency of appeal before it as well as when it dismisses appeal--Appellate Court however, will exercise such power in fit and suitable cases and could also refuse to exercise discretion in exceptional cases.

It was further articulated:

We are, therefore, of the view that the failure of the plaintiff/appellant in deposit of pre-emption money was not intentional and it happened because of the error of the learned trial Judge in calculating the amount as explaine3d above. In the circumstances of this case the plaintiff is entitled to the extension of time under sections 148, 151 and Order XLI, rule 33 of the Civil Procedure Code”.

In the judgment relied upon by the learned counsel for the petitioners i.e. Bhai Khan vs. Allah Bakhsh and another (1986 SCMR 849) it was held as under:

“The rule deducible from the decisions of this Court appears to be that an appellate Court can extend the time for deposit of the pre-emption amount both during the pendency of the appeal before it as well as when it dismisses the appeal. Thus, the view of the learned District Judge that he had no power to extend the time for deposit of the pre-emption amount as the time given by the trial Court in its decree had expired, was erroneous”.

Same view was taken by Hon’ble Supreme Court in Muhammad Shabbir and others vs. Bashir Ahmad (1974 SCMR 24), the relevant extract is as under:

“The appeal before the District Judge was of right. As the appeal was a continuation of the suit, the learned District Judge was fully competent under section 151 of the Code of Civil Procedure to pass the interim order in question. The appeal having been filed on the very date the time fixed by the trial Court for the payment of the pre-emption money was due to expire, a refusal to exercise such power would not only have been improper but would have had the effect of making the appeal itself infructuous, and depriving the respondent of his statutory right of appeal”

1. From the case law discussed supra, it has been consistently held by Hon’ble Supreme Court that the Court (including Appellate Court) has the power to grant extension of time provided circumstances explained in the application are so convincing and tangible as to satisfy the conscious of Court and would not operate as a bar for extension of time once good cause stood established from the record.

2. Suffice it to hold that the circumstances explained in the preceding paras of this judgment sufficiently establish that the Court’s decree was not properly prepared which was subsequently corrected and amended by the Court when the applicants/respondents/plaintiffs approached the Court for the said purpose and significant time

stipulated by the Court was elapsed during the pendency of application. These above-mentioned judgments vindicate the case of respondents/plaintiffs who were granted permission by the Revisional Court. In such circumstances, a demand of written request for extension of time was neither conscionable justified nor in accordance with law. It was the solemn duty of the learned trial Court, while making correction in the order and decree to extend the time itself already consumed for deposit of the corrected amount/price of the decreed land.

1. For what has been discussed above, I find no rationale to interfere in the well-reasoned order of the learned Revisional Court, therefore, this petition having no force is hereby dismissed. No order as to costs.

(Y.A.)

PLJ 2020 Lahore 620

Present: Muhammad Farrukh Irfan Khan, J

MUHAMMAD SALEEM--Petitioner

versus

ADDITIONAL DISTRICT JUDGE DISTRICT BHAKKAR etc.--Respondents

W.P. No. 126174 of 2017, decided on 26.3.2019.

Constitution of Pakistan, 1973--

----Art. 199--Suit for recovery of maintenance allowance & dowry articles--Decreed--Suit for restitution of conjugal rights--Dismissed--Challenge to--Entitlement of maintenance & prompt dower--Husband legally bound to maintain his wife--Legal mandate to pass decree of dower--Validity--So far as issue of maintenance allowance is concerned marital tie between parties is still intact--There is no cavil to proposition that a husband is bound to maintain his wife--Petitioner has not paid dower, therefore, desertion of respondent was fully justified and until payment of dower petitioner is legally bound to maintain his wife despite of fact that she was living apart from him--Courts below after applying correct law on subject have rightly awarded maintenance allowance to respondent which needs no interference by this Court in its Constitutional jurisdiction--There was nothing on record in rebuttal of version of respondent, Courts below thrashed evidence produced by respondent, kept in mind financial status of respondent’s parents and decreed only those articles which in our society are almost given to every bride at time of marriage--Alternate price in lieu of dowry articles’ assessed by Judge Family Court and affirmed by Appellate Court is quite justified and needs no intervention by this Court in its Constitutional jurisdiction--So far as issue of dower is concerned, copy of Nikahnama Ex.P2 is available on record which shows that one tola gold ornaments was fixed as prompt dower--Although petitioner alleged that he has paid same but he failed to substantiate his version by producing evidence as such Courts below were within their legal mandate to pass a decree of dower against him--Counsel for petitioner is unable to convince this Court to take a contrary view--Petition was dismissed.

[Pp. 622 & 623] A, B, C & D

M/s. Malik Ijaz Hussain Gorchha and Muhammad Aamir Javed Bhatti, Advocates for Petitioner.

Mr. Ammar Ashraf, Advocate for Respondent No. 3.

Date of hearing: 26.3.2019.

Order

Briefly the facts of the case are that the Respondent No. 3 filed a suit for recovery of maintenance allowance, dowry articles and dower against the petitioner who contested the said suit and as a counter claim also filed a suit for restitution of conjugal rights. The learned Judge Family Court consolidated both the suits, framed consolidated issues, recorded evidence and passed the impugned judgment dated 16.06.2017 in the following terms:

“(A) Maintenance allowance of the plaintiff is fixed @ Rs. 2000/- per month three year prior of institution of the suit till she will remain legally wedded wife of the defendant.

(B) Plaintiff is entitled to recover dowry articles according to her list Ex.P-1 except gold ornaments mentioned at serial No. 1 to 6, cloths, cow, goat and sheep mentioned at serial No. 23,28,29,30 & 31. The alternate price of dowry articles is assessed that 70% of their values mentioned in the list of dowry articles.

(C) Plaintiff is entitled to recover her dower which was fixed in the shape of gold ornaments weighing 01 tola or its alternate price.

(D) Suit of the defendant for restitution of conjugal rights is dismissed.”

1. Being aggrieved the petitioner filed appeal before the learned Appellate Court/ Addl. District Judge, who vide impugned judgment and decree dated 10.11.2017 modified the period of past maintenance allowance granted to the respondent from three years prior to the institution of suit to the period of desertion i.e. 06.06.2016, however, maintained rest of the findings of the learned Judge Family Court. Being still dissatisfied the petitioner has filed the instant writ petition.

2. Learned counsel for the petitioner submits that the judgments and decrees of the learned Courts below are based on surmises and conjectures and result of mis-reading and non-reading of the evidence; that respondent was living apart from the petitioner with her own consent and she refused to accompany him despite filing of suit for restitution of conjugal rights, therefore, she being disobedient wife is not entitled to claim any maintenance allowance; that both the Courts below without taking into consideration this aspect of the matter Arbitrarily awarded her maintenance during the period of desertion which is unwarranted; that only a few household articles were given to the respondent at the time of her marriage which lost their utility during subsistence of the marriage and presently nothing is lying in possession of the petitioner; that the petitioner has paid the dower to the respondent at the time of marriage; that the petitioner has not been afforded sufficient opportunity to prove his stance by adducing evidence as such he has been condemned unheard.

3. On the converse, learned counsel for Respondent No. 3 submits that the impugned judgments and decrees are well reasoned; that the petitioner failed to pay the dower as such desertion of the respondent was justified; that the petitioner has failed to produce evidence despite availing innumerable opportunities as such the learned Courts below were fully justified in passing the impugned judgments and decrees which need no interference by this Court in its Constitutional jurisdiction.

4. I have heard the arguments of the learned counsel for the parties and gone through the record.

6. So far as the issue of maintenance allowance is concerned marital tie between the parties is still intact. There is no cavil to the proposition that a husband is bound to maintain his wife, however, right of the maintenance is subject to the following conditions:--

i) The wife must be faithful to the husband and obey his reasonable directions/ requirements, if she refuses herself to him, he is not bound to maintain her.

ii) She is not entitled to maintenance when she lives apart from the husband except for non-payment of her dower in which case her right of maintenance continues even though she is living apart from him.

7. Here in the instant case, one tola gold ornaments was fixed as prompt dower which according to the respondent is outstanding against the petitioner. Although the petitioner alleged that he has paid the said dower but he failed to prove his stance through evidence as such it is legitimately presumed that the petitioner has not paid the dower, therefore, desertion of the respondent was fully justified and until the payment of dower the petitioner is legally bound to maintain his wife despite of the fact that she was living apart from him. The learned Courts below after applying correct law on the subject have rightly awarded maintenance allowance to the respondent which needs no interference by this Court in its Constitutional jurisdiction.

8. Next issue is with regard to the dowry articles. The stance of the petitioner is that only a few household articles were given to the respondent which have been utilized during subsistence of the marriage, however, he has failed to prove the same by producing any evidence. Despite of the fact that there was nothing on the record in rebuttal of the version of the respondent, the learned Courts below thrashed the evidence produced by the respondent, kept in mind financial status of the respondent’s parents and decreed only those articles which in our society are almost given to every bride at the time of marriage. Alternate price in lieu of dowry articles’ assessed by the learned Judge Family Court and affirmed by the learned Appellate Court is quite justified and needs no intervention by this Court in its Constitutional jurisdiction.

9. So far as the issue of dower is concerned, copy of Nikahnama Ex.P2 is available on record which shows that one tola gold ornaments was fixed as prompt dower. Although the petitioner alleged that he has paid the same but he failed to substantiate his version by producing evidence as such the learned Courts below were within their legal mandate to pass a decree of dower against him. Learned counsel for the petitioner is unable to convince this Court to take a contrary view.

1. The upshot of the above discussion is that this writ petition fails which is accordingly dismissed.

(M.M.R.) Petition dismissed

PLJ 2020 Lahore 624 (DB)

Present: Muhammad Ameer Bhatti and Atir Mahmood, JJ.

Mst. SADIA JAMSHAID--Appellant

versus

PROVINCE OF PUNJAB and another--Respondents

R.F.A. No. 73473 of 2019, heard on 23.9.2020.

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

----S. 96 & O.XVII, R. 3--Dismissal of suit for non-production of evidence--Opportunity to testify--Obligation of Court--Deprivation of fundamental right--Exercising of jurisdiction--Right of appellant--Challenge to--It is manifestly clear from record that she has been deprived of her fundamental right; leading us to inescapable conclusion that such erroneous exercise of jurisdiction is not consonant with principles laid down by august Court--It appears that trial Court had been oblivious to duty enjoined upon him by failing to admit right of appellant to appear in witness box and has thereby erred in law by omitting to exercise its jurisdiction; which amounts to blatantly frustrating legal right of appellant--It was incumbent upon trial Court, despite non-production of witnesses by appellant, to let her come out with her own version in witnessbox instead of dismissing suit forthwith, in that, such recourse to O.XVII is not warranted by law--Having regard to grim situation emerging from record, both counsels agreed to provide for one last opportunity to appellant with a cost to tune of Rs. 20,000/---Counsel for appellant has readily agreed to pay said cost provided one last opportunity is granted to him--With consent of both parties, we are inclined to set-aside impugned judgment, as a result whereof, suit shall be re-adjudicated by trial Court by granting one last opportunity to appellant to produce her complete evidence subject to payment of cost of Rs. 20,000/- to be deposited in account of respondents within fifteen days from date of commencement of proceedings by trial Court and if she fails to produce evidence on date to be fixed by trial Court, her right to produce evidence would be deemed to have been closed--Appeal was accepted.

[Pp. 625, 626 & 627] A, B, C, D & E

1993 SCMR 2026 and 2008 SCMR 942 ref.

Ms. Scheherezade Shaharyar, Advocate for Appellant.

Mr. Junaid Razzaq, AAG for Respondents.

Mr. Shafqat Mehmood, Senior Law Officer for Respondent No. 2.

Date of hearing: 23.9.2020.

Judgment

Muhammad Ameer Bhatti, J.--This is Regular First Appeal.

Admit. Notice. Record.

1. The respondent’s side, being present in Court on watching brief, accepts notice and agrees to promptly undertake the advancement of arguments. Thus, we regard the case in hand as complete (Pakka) in terms of presence of both the parties and availability of record already attached with grounds of appeal.

2. The suit instituted by the appellant was dismissed by the learned trial Court vide judgment dated 09.10.2019 under Order XVII rule 3, C.P.C. for non-production of evidence despite availing numerous opportunities; as is apparent from the order sheet annexed with the memo of appeal.

4. During course of arguments, it has been noticed by us that appellant although failed to produce evidence, yet to our dismay, the learned trial Court ought to have offered her an opportunity to testify before the Court while closing her right to adduce remaining evidence which legal obligation had not been fulfilled by not affording such opportunity before closing her evidence. It is unbeatable right of a party present before the Court to make a statement to prove the contents of his/her case. It is manifestly clear from the record that she has been deprived of her fundamental right; leading us to the inescapable conclusion that such erroneous exercise of jurisdiction is not consonant with the principles laid down by the august Court deprecating such application of law in the following terms:

“……. There is nothing on the record to show that after the rejection of his request with regard to his affidavit, the learned trial Court before closing his evidence allowed him to appear as his own witness. It is the right of a party to make a statement in support of its case. This right seems to have been denied to the appellant by the learned trial Court”. (1993 SCMR 2026)

5. It appears that the trial Court had been oblivious to the duty enjoined upon him by failing to admit the right of the appellant to appear in the witness box and has thereby erred in law by omitting to exercise its jurisdiction; which amounts to blatantly frustrating legal right of the appellant. In the like situation, the Hon’ble Supreme Court went on to hold that:

“In the case of Abdul Wahid v. Ghulam Mujaddad 1989 CLC 697, too, the tenant was given some adjournments for production of evidence. His evidence was ultimately closed and ejectment was ordered. It was held that since on the said date the tenant and his one witness was present, therefore, Rent Controller was bound to record the statement of tenant and testimony of his witness and then to decide the ejectment application on merits after recording his findings on the issues. The case was remanded to Rent Controller with direction to dispose of matter after giving an opportunity to tenant to produce whole of his evidence.” (2008 SCMR 942)

1. When confronted with the above noted illegality, suffice to vitiate the proceedings of the learned trial Court including the impugned judgment and decree, the learned Law Officer remained speechless and failed to justify to the glaring illegality floating on the surface of record.

7. Foregoing in view, we are constrained to hold that the dismissal of suit forthwith under O. XVII, Rr. 2 & 3 on the premise that the appellant failed to produce evidence is not tenable particularly when the appellant herself was in attendance on the date when suit was dismissed and was not called upon to testify. It was incumbent upon the trial Court, despite non-production of witnesses by appellant, to let her come out with her own version in witnessbox instead of dismissing the suit forthwith, in that, such recourse to O.XVII is not warranted by law.

8. At this stage, having regard to the grim situation emerging from the record, both the learned counsels agreed to provide for one last opportunity to the appellant with a cost to the tune of Rs. 20,000/-. Learned counsel for the appellant has readily agreed to pay said cost provided one last opportunity is granted to him.

9. In view of the above, with consent of both the parties, we are inclined to set-aside the impugned judgment, as a result whereof, the suit shall be re-adjudicated by the learned trial Court by granting one last opportunity to the appellant to produce her complete evidence subject to the payment of cost of Rs. 20,000/- to be deposited in the account of respondents within fifteen days from the date of commencement of the proceedings by the learned trial Court and if she

fails to produce the evidence on the date to be fixed by the learned trial Court, her right to produce evidence would be deemed to have been closed. The parties are directed to appear before the learned Senior Civil Judge, concerned, on 07.10.2020, who shall either take up the matter himself or entrust the same to any other learned Civil Judge for adjudication.

1. This appeal stands accepted in the terms indicated above.

(Y.A.) Appeal accepted

PLJ 2020 Lahore 627 (DB)

Present:Muhammad Ameer Bhatti and Atir Mahmood, JJ.

PUNJAB GOVERNMENT SERVANTS HOUSING FOUNDATION through Managing Director--Appellant

versus

ABDUL RASHEED and others--Respondents

R.F.A. No. 976 of 2013, heard on 30.9.2020.

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

----S. 96--Land Acquisition Act, (I of 1894), Ss. 18 & 23--Filing of reference--Accepted--Entitlement for compensation--Enhancement in compensation award--Determination of potential value of land--Enhancement according to prevailing market price of land--Assertion of appellant as to omission for adducing relevant evidence for enhanced rate of compensation carries no force--Lesser price of land of Respondent No. 1 so determined by acquiring agency, in a perfunctory manner, while ignoring prevalent price of land at relevant time, was a superfluous effort in derogation to settled principles of law, and resulted into frustrating precious rights of Respondent No. 1/owner of land; hence same was befittingly rectified by referee Court--Trial Court, after referring to all evidence and making comparison of several mutations of sale placed on record by Respondent No. 1 and having due regard to award of compensation for remaining land of “Mouza”, arrived at a just conclusion that potential value of land determined by appellant was not proper; and therefore, aptly enhanced it according to prevailing market price of land--We do not find any misreading, non-reading, illegality or irregularity in judgment impugned before us--No other point has been urged by counsel for appellant, therefore, we are not persuaded to interfere with findings recorded by referee Court--Appeal was dismissed. [Pp. 629] A, B, C & D

2014 SCMR 659 and 2015 SCMR 28 ref.

Mr. Abdul Wahid Chaudhary, Advocate for Appellant.

Mr. Muhammad Nauman Qureshi, Advocate for Respondent No. 1.

Date of hearing: 30.9.2020.

Judgment

Muhammad Ameer Bhatti, J.--This appeal is directed against the judgment dated 19.06.2013, passed by the learned Senior Civil Judge, Lahore, whereby a Reference, filed by Abdul Rasheed-Respondent No. 1 under Section 18 of the Land Acquisition Act, 1894 was accepted and the said respondent was held entitled to get compensation at the rate of Rs. 12,500/- per marla alongwith 15% compulsory charges and 8% compound interest with effect from the date of taking possession of the land till its realization thereof.

1. We have heard learned counsel for the parties and examined record of the case with their able assistance.

2. The sole ground urged by learned counsel for appellant to seek declaration, enhancement in compensation, unjustified is lacking of evidence relevant to the increased compensation as such. It has been reiterated that the learned referee Court had misread and misconstrued the evidence available on record; and thereby travelled beyond its jurisdiction while granting enhancement in the rate thereof so fixed by the Land Acquisition Collector.

3. We have heard learned counsels for the parties and gone through the record.

4. It is manifestly clear from the record that the appellant had already purchased a major portion of land in the relevant “Mouza” at the rate of Rs. 12,500/- per Marla and the award of compensation, so notified by the appellant, has been made available on record, which is enough/sufficient to ascertain entitlement of the Respondent No. 1's, compensation of the land in question at the identical price, being in the similar use and location in terms of section 23 of the Act ibid. The act of awarding compensation at a lesser rate by the appellant was uncalled-for particularly when tangible evidence of irrefutable character lent countenance to the version of said respondent. Thus, the treatment meted out to the Respondent No. 1 by the appellant, so as to deprive him of his legitimate right, is seemingly not tenable.

The award of compensation at a rate lower than ones of alike character in the same “Mouza”, cannot be justified nor the grouse so agitated by the appellant can be sustained. Hence, it is held that assertion of the appellant as to omission for adducing relevant evidence for enhanced rate of compensation carries no force.

6. We are unable to agree with the premise so advanced by the learned counsel for the appellant in view of the already awarded afore-mentioned compensation for the lands in similar use and located in the same vicinity. Since it was unequivocally established on the record that the appellant had already purchased the land adjacent to that of the Respondent No. 1, at the rate of Rs. 12,500/- per marla, in the same “Mouza”, it is held that lesser price of the land of Respondent No. 1 so determined by the acquiring agency, in a perfunctory manner, while ignoring the prevalent price of the land at the relevant time, was a superfluous effort in derogation to the settled principles of law, and resulted into frustrating the precious rights of Respondent No. 1/owner of the land; hence the same was befittingly rectified by the learned referee Court.

7. The learned trial Court, after referring to all the evidence and making comparison of several mutations of sale placed on record by Respondent No. 1 (Exh.A-1 to Exh.A-10), and having due regard to the award of compensation for the remaining land of the “Mouza”, arrived at a just conclusion that the potential value of land determined by the appellant was not proper; and therefore, aptly enhanced it according to prevailing market price of the land. We do not find any misreading, non-reading, illegality or irregularity in the judgment impugned before us.

8. No other point has been urged by the learned counsel for the appellant, therefore, we are not persuaded to interfere with the findings recorded by the learned Referee Court, which are in consonance with the law laid down by apex Court in a case reported as Land Acquisition Collector, BOR Punjab vs. Syed Haroon Iftikhar and others (2014 SCMR 659) and Land Acquisition Collector, G.S.C., N.T.D.C., (WAPDA), Lahore and another vs. Mst. Surraya Mehmood Jan (2015 SCMR 28). In the latter landmark judgment, it has been held:

“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 arm's 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.” (underline supplied)

Resultantly, this appeal being devoid of merit stands dismissed. No order as to costs.

(Y.A.) Appeal dismissed

PLJ 2020 Lahore 630 (DB)

Present: Muhammad Ameer Bhatti and Atir Mahmood, JJ.

SHUMAIL WAHEED--Appellant

versus

RABIA KHAN--Respondent

R.F.A. No. 764 of 2011, heard on 24.9.2020.

Defamation Ordinance, 2002--

----Ss. 3 & 12--Civil Procedure Code, (V of 1908), O.VII R. 11--Suit for compensatory damages--Application for rejection of plaint--Accepted--Disputed questions of facts--Exercising of powers by Court contention beyond pleadings--Limitation--Challenge to--Filing of suit within period of six months after publication of defamatory matter came to notice or knowledge of a person so defamed is clear and obvious from section 12 of Defamation Ordinance, 2002--Appellant got knowledge of alleged defamatory remarks at least at time of issuing of notice which was dispatched to recipient whereas suit was filed--Hence, we are in no manner of doubt that suit was filed beyond period of limitation--We have also noticed that appellant has not alleged any good cause to rationalize delay on his part nor did he seek relief for condoning delay by rendering explanation as to why he took such time, eventually to its efflux by limitation, which precluded him from having recourse to legal remedy--Recording of evidence is not mandatory when averments of plaint are silent regarding factum of suit being barred by limitation and recording of evidence cannot be permitted when plaint did not disclose any disputed question of fact for application of mixed question of fact and law nor was there any factual controversy as to limitation period, to be set at rest in suit--We are unable to accept argument of counsel for appellant that question of limitation is always a mixed question of fact and law--It varies according to circumstances averred in plaint--Appellant did not aver any disputed questions of facts in his plaint concerning institution of suit beyond limitation period, therefore, being a pure question of law, suit of plaintiff was barred by limitation and plaint was liable to be rejected under Order VII Rule 11 C.P.C., which power has rightly been exercised by trial Court so that parties should not undergo rigors of trial when fate of case is tangibly perceptible--It is settled principle of law that none of parties is allowed to adduce evidence in support of a contention beyond pleadings--Hence, we have no hesitation to declare judgment passed by trial Court, being consistent with law and facts, does not warrant interference by this Court--Appeal was dismissed.

[Pp. 634, 635 & 640] A, B, C, D, E, F & G

PLD 2020 SC 338, 2019 SCMR 74, PLD 2016 SC 730, 2015 SCMR 21 and 1989 CLC 1405 Lah. ref.

Syed Shahab Qutub and Mr. Ali Zahid Rahim, Advocates for Appellant.

Ms. Hina Bandealy, Advocate for Respondent.

Date of hearing 24.9.2020.

Judgment

Muhammad Ameer Bhatti, J.--This appeal under Section 15 of the Defamation Ordinance, 2002 has been preferred to impugn the vires of judgment dated 23.05.2011, handed down by the learned trial Court/Addl. District Judge, Lahore, to the effect that the plaint instituted by the appellant was beyond the limitation period, necessitating rejection thereof.

1. Succinctly, the appellant instituted a suit for compensatory damages to the tune of Rs. 25,00,000/- under Defamation Ordinance, 2002. Following the service of process, the respondent turned up before the Court and filed an application under Order VII Rule 11 C.P.C., for rejection of plaint on the premise that the complaint was barred by limitation. Pursuant thereto, the plaintiff/appellant filed reply and resisted the application. The learned trial Court while accepting the application under Order VII Rule 11 C.P.C., declared filing of suit barred by limitation and rejected the plaint.

2. Learned counsel for the appellant contends that the question of limitation is a mixed question of fact and law which can only be decided after recording evidence of the parties but the learned trial Court, in utter disregard of the settled principles laid down by the Hon’ble Superior Courts, without providing opportunity to the parties to lead evidence in order to establish that his suit was within the limitation period, rejected the plaint. To substantiate his contention, the learned counsel placed reliance on Muhammad Asif and others vs. State Life Insurance Corporation of Pakistan through Chairman and another (2018 CLD 239).

3. On the other hand, learned counsel for the respondent vehemently opposed the argument put forth by learned counsel for the appellant to maintain that the question of limitation rests on the circumstances explained in the plaint, inasmuch as it has two-fold implications; and being a pure question of law, at times, it becomes mixed question of fact and law particularly when disputed facts in regard to reckoning of limitation from the acquisition of knowledge or origin of the cause of action from a specific date, need probe by recording evidence. It was next urged that where the suit, on the face of it, depicts to be beyond the limitation period from the bare perusal of plaint, like the one in hand, it was liable to fall apart as has been envisaged by Order VII Rule 11, C.P.C. However, should the plaintiff aver some facts involving factum of knowledge, which need to be proved by means of evidence, the Court may regard it as a mixed question of fact and law, and provide opportunity to the parties to lead evidence accordingly.

4. To elaborate her arguments, it was next submitted that the appellant issued notice, as was required under Section 8 of the Defamation Ordinance, 2002, on 16.04.2009, which was replied on 9.6.2009 by the defendant/respondent; while the suit was instituted on 16.11.2009, therefore, it was patently beyond the prescribed limitation period of six months even if it was to take effect from the date of such notice. She added that since the appellant filed the suit after expiry of more than seven months from the date of commencement of limitation period, there was no justifiable reason to bring the suit within the limitation through recording of evidence, as it was explicitly barred by law; hence, the learned trial Court has not committed any illegality or irregularity.

5. Further contends that the appellant sent the notice to assert that the defamation was occasioned in May, 2006 by the respondent as is reflecting in Para 24 of the plaint, without assigning good cause for filing the suit beyond the time limitation. Suffice it to say that according to the averments of the plaint, his cause of action commenced from May, 2006 which establishes that he had the knowledge of alleged defamatory remarks since May, 2006 but failed to assign any reasonable ground to explain as to why he filed this suit beyond the limitation period. She emphatically argued that it is settled law that no evidence beyond the pleadings was permissible; and for this reason, inter alia, there was no valid explanation to permit the appellant to lead any evidence so as to meet with the objection with regard to the limitation by leading any evidence. Reliance was placed on Agha Syed Mushtaque Ali Shah vs. Mst. Bibi Gul Jan and others (2016 SCMR 910).

6. We have heard learned counsel for the parties and gone through the record of the case.

7. From the perusal of record it transpires that the appellant had issued mandatory notice before filing the suit, as a pre-requisite, under Section 8 of the Defamation Ordinance, 2002. Such a mandatory notice did not contain information viz-a-viz the specific date of appellant’s knowledge about the defamatory remarks, its source, the precise contents of defamatory remarks and explicit monetary claim, as a result of the alleged defamatory version, if any, in order to sue the respondent. The rational underlying the notice is to provide information with respect to the alleged action, infringement brought about by its recipient and quantum of claim/damages. Mere dispatching the notice in a mechanical manner without disclosure of all the essential ingredients as underlined here-in-above, would not suffice as it could not be a true demonstration of the objective compliance of the constant principle underlying law nor can it serve the purpose in a beneficial manner. The foremost purpose to serve the notice was to facilitate the recipient to reconsider his/her remarks for withdrawal/abandonment thereof, and thereby to avail such opportunity for settlement of the dispute, if so advised, without recourse to the trouble and cost of litigation.

9. Filing of suit within period of six months after publication of defamatory matter came to the notice or knowledge of a person so defamed is clear and obvious from Section 12 of the Defamation Ordinance, 2002. Bare reading of plaint and the notice issued to the defendant manifestly reveal that the appellant got the knowledge of the alleged defamatory remarks at least at the time of issuing of notice which was dispatched to the recipient on 16.4.2009 whereas the suit was filed on 16.11.2009. Hence, we are in no manner of doubt that the suit was filed beyond the period of limitation. We have also noticed that the appellant has not alleged any good cause to rationalize the delay on his part nor did he seek the relief for condoning the delay by rendering explanation as to why he took such time, eventually to its efflux by limitation, which precluded him from having recourse to the legal remedy. Therefore, we can safely hold that recording of evidence is not mandatory when the averments of the plaint are silent regarding the factum of suit being barred by limitation and recording of evidence cannot be permitted when the plaint did not disclose any disputed question of fact for application of mixed question of fact and law nor was there any factual controversy as to the limitation period, to be set at rest in the suit. In Muhammad Khan’s Case (2008 SCMR 913) the august Supreme Court has already held that:

“Evidently the suit was filed beyond the period of limitation prescribed under Article 113 of the Limitation Act it must be stated that the fact of limitation is evident from the averments made in the plaint itself. In such circumstances, the trial Court was not required to frame issue and record evidence. The argument advanced by learned counsel for the petitioners is absolutely misconceived and not tenable.”

10. Foregoing in view, it is held that, in this case, the question of limitation was a purely that of law indeed and not that of fact. We are unable to accept the argument of learned counsel for the appellant that the question of limitation is always a mixed question of fact and law. It varies according to the circumstances averred in the plaint. If a bare reading of plaint does not give rise to any such factual probe and no disputed question of facts regarding a precise date of acquisition of knowledge exists nor is there any explanation for its filing with delay forthcoming on the record, in such eventuality there is no need to frame issue and record evidence, and it is liable to be considered as a pure question of law. Needless to say that the disputed facts in respect of date of knowledge may call for recording of evidence as mixed question of fact and law. But in the case under consideration, there is no disputed fact as such requiring the recording of evidence as opposed to the eventuality, discussed above, which might lead to the determination of the question of limitation after recording evidence. It is also settled law that no evidence beyond the scope of pleadings is permissible to bring on record even if some has been led by a party, the Court shall exclude and ignore such evidence from consideration.

11. Following the settled principle of law, we are of the view that the appellant did not aver any disputed questions of facts in his plaint concerning the institution of suit beyond the limitation period, therefore, being a pure question of law, the suit of the plaintiff was barred by limitation and the plaint was liable to be rejected under Order VII Rule 11 C.P.C., which power has rightly been exercised by the learned trial Court so that the parties should not undergo the rigors of the trial when the fate of the case is tangibly perceptible.

12. It is settled principle of law that none of the parties is allowed to adduce evidence in support of a contention beyond the pleadings. In this regard, we are fortified from the ratio laid down by Hon’ble Supreme Court in Muhammad Yaqoob vs. Mst. Sardaran Bibi and others (PLD 2020 SC 338) wherein it was held:

“It is settled law that a party is not allowed to improve its case beyond what was originally setup in the pleadings”.

In Moiz Abbas vs. Mrs. Latifa and others (2019 SCMR 74) it was ruled out that:

“These improvements are clearly beyond the pleadings and constitute and attempt to improve the case of the respondents as a afterthought. Such course of action is not permitted by law.

Suits involving sales based on oral agreements are more susceptible to improvements made by parties in the evidence and pleadings in order to succeed.

Even otherwise, it is settled law that no amount of evidence can be considered on a plea of fact which was not raised in the pleadings by the parties”.

In Combined Investment (Pvt.) Ltd. vs. Wali Bhai and others (PLD 2016 SC 730), the Hon’ble Supreme Court concluded that:

“Where the principle of estoppel is pressed into service on the basis of some admitted/undisputed facts of the case, a party is bound by his pleadings and conduct. Hence, at any later stage, he cannot turn around to wriggle out from the consequence of such admission and conduct of submitting to the jurisdiction of such authority”.

Same view was set out in Muhammad Iqbal vs. Mehboob Alam (2015 SCMR 21), the relevant extract is as under:

“It is also settled law that no litigant can be allowed to build and prove his case beyond the scope of his pleadings”.

The Hon’ble Supreme Court of Pakistan further elaborated this view in Sardar Muhammad Naseem Khan vs. Returning Officer, PP-12 and others (2015 SMCR 1698) as under:

“The importance of the pleadings and its legal value and significance can be evaluated and gauged from the fact that it is primarily on the basis thereupon that the issues are framed; though the pleadings by themselves are not the evidence of the case, the parties to a litigation have to lead the evidence strictly in line and in consonance thereof to prove their respective pleas. In other words, a party is bound by the averments made in its pleadings and is also precluded from leading evidence except precisely in terms thereof. A party cannot travel beyond the scope of its pleadings. It may be pertinent to mention here, that even if some evidence has been led by a party, which is beyond the scope of its pleadings, the Court shall exclude and ignore such evidence from consideration”.

In Abrar Ahmed and another vs. Irshad Ahmed (PLD 2014 SC 331), it was observed as under:

“And in such a situation, they under the law are precluded to assail the validity of the gift on that account, because no one can be allowed to set out a new case beyond the scope of his pleadings”.

The subject matter was also taken up by Hon’ble Supreme Court of Pakistan in Messrs Essa Engineering Company Pvt. Ltd. and another vs. Pakistan Telecommunication Company Limited and another (2014 SCMR 922 = 2014 CLD 625) wherein it was observed that:

“As noted above pleadings of the parties are the benchmark of their respective claims on which issues are drawn and evidence is led which is restricted to the issues struck between the parties alone and not beyond them. If any evidence beyond the purview of issues does come on record, no party can on such evidence set up altogether a new case and press the same for getting relief merely on the basis of an out of context evidence. The rule enunciated by the Indian Supreme Court in the above cited case has no relevance to the case of plaintiff as the subject matter of machinery and raw material was never an issue nor it could be said that it was the ground which both parties understood to be in issue in the case. Going on such premises will be highly detrimental and to the grave prejudice of the defendant as it cannot be taken by surprise”.

In Wasi-ud-Din vs. Fakhra Akhter and 4 others (2011 SCMR 1550) it was laid down as under:

“However, these pleas were neither taken in the pleadings of the appellant nor is there any credible proof of such assertion. These bald statements, therefore, cannot be relied upon for the purpose of holding that Razia Khatoon had any independent resources sufficient to enable her to purchase the properties in dispute”.

In the case of Abdul Haque and others vs. Shaukat Ali and 2 others (2003 SCMR 74), same view was taken by Hon’ble Supreme Court on the subject matter. The relevant extract is as under:

“The evidence led by the predecessor-in-interest of respondents beyond the scope of the pleading was not permissible”.

1. So far as the question of limitation, a mixed question of law and fact and the period of limitation would be a pure question of law, is concerned, Hon’ble Supreme Court of Pakistan elaborately dealt with the same, some of which is discussed here-under

In Jan Muhammad and others vs. Mst. Sakina Bibi and others (PLD 2017 SC 158), Hon’ble Supreme Court of Pakistan held as under:

“This Court has the discretion to grant leave at the time of hearing an appeal in which leave has been granted on a different point(s) and to consider such point of law, including for instance the question of inherent jurisdiction, undoubtedly being a pure question of law; even if not earlier taken up in any proceedings including those before the Supreme Court. This could very well apply to the point of limitation too where such plea was not dependent upon any factual determination. However, those cases which require a factual foundation and adjudication for the purposes of settling a legal issue cannot be said to be pure questions of law and the same cannot be allowed to be raised before this Court for the first time”.

It was further held in Mrs. Akram Yaseen and others vs. Asif Yaseen and others (2013 SCMR 1099) as under:

“Even if we very favourably consider as from which date the limitation will run for filing of civil suit than it will be from the date of the judgment of the learned Lahore High Court dated 4-6-1998 although we are of the definite view that time for filing civil suit will start running from 12-11-1987 when the Appellate Court allowed the appeal of the respondent. Even if the date of the judgment of the learned High Court is considered, the last date the civil suit could have been filed was 3-6-2004 and this suit was filed on 22-7-2005 which is much beyond the period of limitation and therefore the learned High Court has rightly held that the application under Order VII, Rule 11, C.P.C. had to be accepted”.

In the case of Muhammad Khan vs. Muhammad Amin through L.Rs. and others (2008 SCMR 913) it was observed as under:

“The plaint in the suits were admittedly filed on 5.1.2004. Evidently the suit was filed beyond the period of limitation prescribed under Article 113 of the Limitation Act it must be stated that the fact of limitation is evident from the averments made in the plaint itself. In such circumstances, the trial Court was not required to frame issue and record evidence. The argument advanced by learned counsel for the petitioners is absolutely misconceived and not tenable. There is no infirmity or illegality in the judgment delivered by the High Court. It warrants no interference.”

In this regard we are also fortified from the dictum laid down by Hon’ble Supreme Court in case reported as Muhammad Ilyas and others vs. Khadim Hussain and others (2006 SCMR 1761), the relevant extract is reproduced as under:

“It is worth-mentioning that the objection of limitation was never raised before the learned trial and appellate Courts but on the contrary it was introduced at revisional stage and no reason whatsoever could be given for this laxity. We are conscious of the fact that the question of limitation being a question of law can be raised at any moment but it must not be lost sight of that initially it should have been incorporated in the pleadings. A careful perusal of the written statements is indicative of the fact that no objection whatsoever was raised qua limitation which was never pressed into service and no issue was got framed which, in our considered view, amounts to waiver. It is worth- mentioning that no cross-appeal was filed on the point of limitation by the petitioners. In this regard reference can be made to case Atta Hussain Khan v. Muhammad Siddique Khan 1979 SMCR 630.”

In Nazar Gul vs. Islam and 3 others (1998 SCMR 1223) it was held as under:

“Suit brought by him was, thus patently time-barred and it was rightly so held by the learned Judge of the High Court. Since the bar of limitation was apparent from the contents of the plaint itself, the learned Judge rightly dismissed the suit on the ground of limitation instead of remanding the case to the Courts below”.

In Hakim Muhammad Buta and another vs. Habib Ahmad and others (PLD 1985 SC 153) it was articulated as under:

“The law, therefore, does not leave the matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon the Court itself. There is a chain of authority, and a detailed discussion of the same is not necessary, to lay down that limitation being a matter of statute and the provisions being mandatory, it cannot be waived and even if waived can be taken up by the party waiving it and by the Courts themselves.

Where, therefore, the application is on the face of it barred by limitation, it is the duty of the Court to dismiss it summarily and there is no occasion for calling upon the judgment debtor to show cause why it should not be admitted. Where, however, the question of limitation depends on a question of fact which cannot be determined without taking evidence, the position would certainly be different.”

The question of limitation may be one of fact or of law, if former the Court is not bound to go into it unless raised by the parties, and if latter the Court is as a general rule bound to raise and decide it, although not raised by the parties.

If the plea of limitation in a particular case is a mixed question of law and fact, that it will be highly improper to allow the plea to be raised.

Where the question of limitation is not a mixed question of law and fact or where limitation is apparent on the face of the record, a waiver by the parties would not relieve the Court itself of its duty under section 3 of the Limitation Act and a waiver by the Court of the question of limitation is not contemplated”.

Same view was pronounced in Shahid Israr vs. Mst. Maryam Bibi (PLD 2009 Lahore 119). The relevant extracts are re-produced as under:

However, still the point has been argued before me and deeming it to be a pure question of law, because the admitted facts are available on record i.e. about the execution of the sale deed on 13-8-1999 and its registration dated 26-8-1999 and the filing of the suit on 3-12-1999.

Suffice it to say that according to section 47 ibid, a registered document shall operate from the time from which the same commence to operate, if no registration thereof had been required or made and not from the time of its registration.

This provision, however, in no manner, shall regulate of circumscribe the period of limitation as prescribed by Section 30 of the Punjab Pre-emption Act, 1991, which is a very explicit provision of law and is independent in its application”.

In Muhammad Akram vs. Aurangzeb and another 1989 CLC 1405 (Lahore) it was held as under:

“In section 3 of the Limitation Act, legislature has expressly declared that whether the defence of limitation be pleaded or not, the Courts, whether of first instance or of appeal, are bound to give effect to the law.

It is also well-settled that a plea of limitation like a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. Plea of limitation as a pure question of law unless it involved the taking of fresh evidence, can be allowed to be raised as a matter of right at any stage of proceedings even in the Court of law resort”.

14. Hence, we have no hesitation to declare the judgment passed by the learned trial Court, being consistent with law and facts, does not warrant interference by this Court.

1. For what has been discussed above, this appeal having no force is hereby dismissed. No order as to costs.

(Y.A.) Appeal dismissed

PLJ 2020 Lahore 641

Present: Rasaal Hasan Syed, J.

FAUZIA BATOOL and another--Petitioners

versus

MUHAMMAD AKRAM and 2 others--Respondents

W.P. No. 232965 of 2018, decided on 24.4.2019.

Constitution of Pakistan, 1973--

----Art. 199--Suit for recovery of maintenance allowance, dower articles and gold ornaments--Partly decreed--Appeal--Declined--Suit for restitution of conjugal rights--Dismissed--Challenge to--Modification of judgment--It appears that by adding annual increase amount of monthly maintenance has reached a reasonable level to cater for day to day needs of minor--Respondent did not challenge grant of maintenance to minor, therefore, decree of trial Court as also appellate Court to extent of minor’s maintenance i.e. Petitioner No. 2 is affirmed--However, it is observed that Petitioner No. 1 was incorrectly declined past maintenance by either misreading record or ignoring material facts proved on file--From statement of Petitioner No. 1 it is observed that in her statement she had specifically mentioned that respondent had entered a second marriage without her permission or a certificate of permission from Union Council and a son was born out of second wedlock--Strange enough respondent denied para 13 of plaint--In his cross-examination he was confronted with this position when he could not deny that he had entered in a second marriage but attempted to cover up illegalities by giving an impression of having done so with permission--On being asked he was unable to produce either witness from Union Council or Registrar or any document of permission from first wife--Had such prosecution taken place respondent would have been in hot water--It appears that petitioner did not initiate such action presumably to save her marriage nor she filed any suit for dissolution of marriage on this plea though it was a ground to dissolve marriage--Despite second marriage, without permission of petitioner, when she was asked in cross-examination as to whether she was willing to assume her matrimonial relations with respondent, she categorically deposed that she was willing to live with respondent if he arranges an abode for her--Obviously under Islamic injunction, respondent was supposed to ensure equal treatment--He was expected to arrange a place of residence for first wife if he had decided to enter second wedlock--He could not compel wife to stay with him at a place where he had got second wife and there was nothing to prove that house had any second portion to accommodate first wife--In these circumstances, Courts below incorrectly assumed that petitioner had declined to assume her matrimonial relation/duty and thus maintenance should be declined--Evidence suggests to contrary, as it shows reasonableness of Petitioner No--1 who despite violation of rule and provisions of Muslim Family Laws Ordinance, 1961 by husband was still willing to stay with him in a place to be provided by him--This gesture of petitioner should not have disentitle her to grant of maintenance--Findings of Courts below therefore are legally unsustainable and based on non-consideration of material evidence on record, hence cannot be sustained and are accordingly set aside--Petitioner No. 1/Fauzia Batool shall also be entitled to maintenance from date of institution of suit at same rate as has been allowed to minor/Petitioner No. 2 i.e. Rs. 2,000/- per month-- Rate at which maintenance was allowed to minor and rate at which monthly maintenance is now permitted to Petitioner No. 1 will of course be within income of respondent as claimed by him in his evidence--As regards claim for dowry, Courts below allowed Rs. 50,000/- as value of articles of dowry as petitioner could not produce any receipts of articles or any proof that articles of dowry claimed by her inclusive of gold was withheld by respondent--No interference is therefore required in findings in respect of dowry articles--For reasons above this writ petition is partly allowed, judgments of Courts below are modified to extent that in addition to monthly maintenance of minor/Petitioner No. 2 as by Courts below, Petitioner No. 1/Mst. Fauzia Batool shall also be entitled to recovery of maintenance allowance @ of Rs. 2,000/-per month from date of institution of suit till her entitlement in subsisting marriage. [Pp. 646 & 647] A, B, C, D & E

Malik Mukhtar Hussain Gorcha, Advocate for Petitioners.

M/s. Ejaz Hussain Malik and Amir Javed Bhatti, Advocates for Respondents.

Date of hearing: 3.4.2019.

Judgment

The writ petitioner in this case has called into question judgment and decree dated 14.3.2018 of learned Judge Family Court, Bhakkar, partly decreeing petitioner’s suit for recovery of maintenance allowance, dowry articles, gold ornaments, etc. as well as judgment and decree dated 17.5.2018 of learned Addl. District Judge, Bhakkar, whereby appeal filed by her for enhancement was declined.

1. Summary of facts pertinent to decision of the case is that the Petitioner No. 1 and Respondent No. 1 got married on 20.11.2007 and were blessed by Petitioner No. 2 minor Muhammad Aesh Raza. The marriage remained problematic as the same was an exchange marriage between the families and the bond between the couple bore the strain of this context. Eventually the respondent contracted second marriage, the relationship between the parties practically ended although the marriage remained intact and a suit was brought by the petitioners for recovery of maintenance allowance, dowry articles and gold ornaments on 01.9.2016. On 30.9.2016 the respondent filed a suit for restitution of conjugal rights. Contested written statement was filed by respondent in the suit filed by the petitioners and while the Petitioner No. 1 filed a written statement in the suit of Respondent No. 1 wherein it was stated that in fact the suit for restitution of conjugal rights had been filed as a counterblast to the suit for maintenance and recovery of dowry articles filed by the petitioners. Upon failure of pre-trial reconciliation efforts consolidated issues were framed vide order dated 13.4.2017 based on the pleadings of the parties in two respective suits namely petitioners’ suit for recovery of maintenance allowance and dowry articles and the respondent’s suit for restitution of conjugal rights. Parties were directed to lead evidence. The petitioner herself appeared as P.W.I and one Ashiq Hussain appeared as P.W.2 and adduced his affidavit as Ex. P.2, while Petitioner No. 1 adduced her affidavit as Ex.P.1, list of dowry articles as Ex.P.3, Nikahnama as Mark PA, birth-certificate Mark PB and copy of marriage registration certificate as Mark PC. On the other hand, respondent appeared as D.W.I and adduced his affidavit as Ex.D.I and produced Malik Akhtar as D.W. 2 while one Ramzan testified as D.W. 3. Defense’s documentary evidence comprised affidavits Ex.D.1 to Ex.D. 3.

2. Upon analysis of evidence learned Family Court vide judgment dated 14.3.208 partly decreed the suit of the Petitioner No. 2 whereby the claim of the Petitioner No. 2 for maintenance was allowed @ Rs. 2,000/- per month for six years before the filing of suit, while claim of maintenance for Petitioner No. 1 was declined. Likewise, claim for dowry was allowed to the extent of Rs. 50,000/- and suit for restitution of conjugal rights was decreed. An appeal was filed by the petitioners against the judgment and decree of learned Family Court which was dismissed on 17.5.2018. The judgments of both Courts below have been impugned in Constitutional jurisdiction of this Court.

3. Learned counsel for the petitioner submits that Petitioner No. 1 is ready and willing to reside with the respondent however he has contracted second marriage and is unwilling to keep her. Further submits that the quantum of maintenance determined for Petitioner No. 2 is very meager and that rejection of claim of Petitioner No. 1 for maintenance altogether was not justified in view of unwillingness of Respondent No. 1 and furthermore the quantum of dowry articles has been wrongly determined.

4. Learned counsel for the respondents has controverted the arguments raised by learned counsel for the petitioner and has supported the view of the Courts below by submitting that the respondent is very much willing to keep the petitioner but in fact she is unwilling to live with him and as such maintenance allowance was correctly denied in her case by the Courts below.

5. Arguments from both sides have been duly considered in light of the documents placed on record with the writ petition.

6. Parties entered into nikah on 20.11.2007, minor Muhammad Aesh Raza was born, unfortunately because the match was based on vattasatta the relationship between the parties could not independently thrive and ultimately succumbed to the strain of the context within which the marriage had come about. It appears that respondent contracted second marriage, eventually the petitioner filed a suit for recovery of maintenance allowance and dowry articles along with gold ornaments on 09.1.2016, after moving out of the matrimonial home. The respondent on 30.9.2016 instituted a suit for restitution of conjugal rights. In her suit the petitioner claimed entitlement to maintenance @ Rs. 5,000/- per head amounting to Rs. 4,20,000/- (per petitioner) on account of years of abandonment. The claim of dowry articles was made in the sum of Rs. 5,61,000/- while sum of Rs. 2,50,000/-was claimed on account of jewellery of 5 tollas. It was alleged that the petitioner had been forced out of the matrimonial home in 2009 while all her belongings were snatched so much so that Petitioner No. 1 was not allowed to take Petitioner No. 2 with her. However a week later by intercession of the respectables of the community the minor was handed over and that the petitioner being the only daughter of her parents was bestowed with dowry translating into monitory value of Rs. 5,61,000/- and it was further stated that she had been given jewellery additionally, value whereof was asserted to be Rs. 2,50,000/-. The respondent disputed the claim of the petitioner by taking the plea that the respondent was very much willing that the parties should live together but the petitioner did not want to do so as such maintenance to her extent was inadmissible. The dowry articles as well as gold ornaments were denied. The existence of any list was specifically questioned and it was stated that no such list in fact was ever prepared. The petitioner produced list of dowry articles as Ex.P.3 which reveals that the total claim of the petitioner under the head of dowry articles including jewelry was Rs. 5,61,000/- with the following break up:

Rs. 2,50,000/- for gold ornaments, Rs. 53,000/- for electronics, Rs. 85,000/- for furniture, Rs. 1,05,000/-for crockery and kitchenware and

Rs. 68,000/- on account of clothing and bedding.

1. No evidence was however led in the form of receipts to support the claim nor was any cogent evidence adduced to establish delivery thereof. Gold ornaments that had been specifically claimed could also not be established. The list of dowry articles upon which reliance was being made was in fact proved to have been prepared at the time of institution of suit by Nafees Ahmed Khan, Advocate and as such could not itself have any evidentiary value. On the other hand, respondent produced a list and claimed that the same contained the details of articles that were actually handed over to him. The respondent also deposed that he was a soldier in the Army with the salary of Rs. 17,000/-The learned Courts below observed that the Petitioner No. 2/minor was entitled to the maintenance at the rate of Rs. 2,000/- with 10% increase for the last 06 years while the maintenance of Petitioner No. 1 was declined. It was assumed by both the Courts that since the petitioner had not allegedly proved that she was expelled from the house or was compelled to live apart and that the respondent was willing to keep her at his own place, therefore, the petitioner was not allegedly entitled to any maintenance.

2. In so far as the grant of maintenance to the minor is concerned, though it was not reasonable yet keeping in view the fact that it was granted for the last six years from the date of decree as also the future maintenance with 10% annual increase, therefore, it appears that by adding the annual increase the amount of monthly maintenance has reached a reasonable level to cater for day to day needs of the minor. The respondent did not challenge the grant of maintenance to the minor, therefore, the decree of the trial Court as also the appellate Court to the extent of minor’s maintenance i.e. Petitioner No. 2 is affirmed. However, it is observed that the Petitioner No. 1 was incorrectly declined past maintenance by either misreading the record or ignoring the material facts proved on file.

3. From the statement of Petitioner No. 1 it is observed that in her statement she had specifically mentioned that respondent had entered a second marriage without her permission or a certificate of permission from the Union Council and a son was born out of the second wedlock. Strange enough the respondent denied para 13 of the plaint. In his cross-examination he was confronted with this position when he could not deny that he had entered in a second marriage but attempted to cover up the illegalities by giving an impression of having done so with permission. On being asked he was unable to produce either the witness from Union Council or the Registrar or any document of permission from the first wife. As a matter of fact, the petitioner could have prosecuted the respondent for entering in the second marriage without her permission and certificate of Union Council. Had such prosecution taken place respondent would have been in hot water. It appears that the petitioner did not initiate such action presumably to save her marriage nor she filed any suit for dissolution of marriage on this plea though it was a ground to dissolve the marriage. Despite the second marriage, without permission of the petitioner, when she was asked in cross-examination as to whether she was willing to assume her matrimonial relations with respondent, she categorically deposed that she was willing to live with the respondent if he arranges an abode for her. Obviously under Islamic injunction, the respondent was supposed to ensure equal treatment. He was expected to arrange a place of residence for the first wife if he had decided to enter the second wedlock. He could not compel the wife to stay with him at a place where he had got the second wife and there was nothing to prove that the house had any second portion to accommodate the first wife. In these circumstances, learned Courts below incorrectly assumed that the petitioner had declined to assume her matrimonial relation/duty and thus maintenance should be declined. The evidence suggests to the contrary, as it shows the reasonableness of Petitioner No. 1 who despite the violation of rule and the provisions of Muslim Family Laws Ordinance, 1961 by the husband was still willing to stay

with him in a place to be provided by him. This gesture of the petitioner should not have disentitle her to the grant of maintenance. The findings of learned Courts below therefore are legally unsustainable and based on non-consideration of the material evidence on record, hence cannot be sustained and are accordingly set aside. The Petitioner No. 1/Fauzia Batool shall also be entitled to the maintenance from the date of institution of the suit at the same rate as has been allowed to the minor/Petitioner No. 2 i.e. Rs. 2,000/- per month. The rate at which the maintenance was allowed to the minor and the rate at which the monthly maintenance is now permitted to Petitioner No. 1 will of course be within the income of the respondent as claimed by him in his evidence.

11. As regards the claim for dowry, the learned Courts below allowed Rs. 50,000/- as the value of articles of dowry as the petitioner could not produce any receipts of the articles or any proof that the articles of dowry claimed by her inclusive of the gold was withheld by the respondent. No interference is therefore required in the findings in respect of dowry articles.

12. For the reasons above this writ petition is partly allowed, the judgments of the Courts below are modified to the extent that in addition to the monthly maintenance of the minor/Petitioner No. 2 as by the Courts below, the Petitioner No. 1/Mst. Fauzia Batool shall also be entitled to the recovery of maintenance allowance @ of Rs. 2,000/-per month from the date of institution of the suit till her entitlement in subsisting marriage.

(M.M.R.) Petition partially allowed

PLJ 2020 Lahore 647

Present: Muhammad Ameer Bhatti, J.

LATIF AHMED-Petitioner

versus

CHIEF SECRETARY PUNJAB, LAHORE and another--Respondents

W.P. No. 55193 of 2019, decided on 26.10.2020.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointment as junior special education teacher--Attaining rank of senior special education teacher--Application for post of headmaster in same department--Offer of appointment--Duty acceptance--Denial for issuance of appointment letter--Representation--Turned down--Appeal--Rejected--Demand of fresh medical certificate--Direction to--Petitioner was working in University as Assistant Professor after obtaining permission from his parent department under Punjab Civil Services (Applications for Posts) Rules, 1987 and had retained lien period intact--He was already in Govt. service when he was declared eligible and recommended by PPSC to be appointed for new assignment as Headmaster--Respondents have overlooked their authority in utter breach of law, in that, petitioner was not obliged to provide another medical certificate, being already in Govt. service--Respondents had to concede a precious right that accrued to petitioner as they could not call upon petitioner to produce such medical certificate for purpose--Such requirement was mandatory only for first appointment in any Govt. department--It was incumbent upon respondents to issue appointment letter to petitioner and its denial is tantamount to flagrant defiance of law as it deprives petitioner of invaluable right already accrued to him in consequence of his worth demonstrated in prescribed manner--Demand of a fresh medical fitness certificate which eludes fruit he had to reap in form of his new appointment was a careless attitude on part of respondents who had erroneously discharged their authority in an unjust and unwarranted manner--Act of respondents was patently in derogation to law and, on face of it, was illegal, unlawful and without any legal justification inasmuch as no fresh medical fitness certificate was required for appointment to another post particularly when applicant/candidate was already performing duties and holding a post as civil servant in same department of Government--It becomes obvious and clear that petitioner has been made victim of a wrong doing of respondents, to which, petitioner was not at all guilty or at fault--As noted above, if there was any lapse it was on part of respondents--Action of respondents qua non-issuance of appointment letter to petitioner is hereby declared to be without lawful authority, illegal, contrary to settled principle of law as well as Rules & Regulations and therefore, same are hereby set-aside being of no legal effect, with a direction to respondents to issue appointment letter to petitioner within a period of one month from receipt of certified copy of this order, strictly in accordance with law--Petition was allowed.

[Pp. 649, 650, 651, 652 & 653] A, B, C, D & E

Mehr Asif Iqbal, Advocate for Petitioner.

Mr. Saqib Haroon Chishti, AAG for State.

Mr. M. Abubaker Aslam, Law Officer, Special Education Department on behalf of Respondents No. 1 & 4.

Date of hearing: 26.10.2020.

Order

The succinct facts germane to the disposal of instant constitutional petition are that the petitioner, who was initially appointed as Junior Special Education Teacher (H.I. Field/BS-16) in the Special Education Department and attained the rank of Senior Special Education Teacher (H.I. Field/BS-17), had applied for the post of Headmaster (H.I. Field/BS-18) through proper channel in the same department. He was eventually selected as such by the Punjab Public Service Commission and offer of appointment dated 18.08.2016 was duly accepted by him, yet the respondents denied the issuance of his appointment letter inter alia on the premise that he failed to furnish the medical certificate as a pre-requisite for the purpose.

1. Feeling aggrieved, the petitioner filed a representation before the Secretary Special Education, which was turned down on 09.11.2017; and appeal filed by him there-against was also meted out a similar treatment by the Chief Secretary Punjab, who, vide impugned order dated 29.08.2019, maintained earlier view of the Secretary Special Education, to the effect that non-provision of medical fitness certificate by the petitioner was fatal for the issuance of appointment letter. Hence, the instant constitutional petition was instituted by the petitioner with the following prayer:

“Under the above mentioned circumstances it is most respectfully prayed that the instant writ petition may kindly be accepted and order dated 29.8.2019 passed by the Respondent No. 1 may kindly be declared to be illegal, ultra-vires, without jurisdiction, perverse and erroneous and may kindly be set-aside, and the Special Education Department/Respondent No. 2, being competent authority may kindly be directed to issue the appointment order in favour of the petitioner against the post of Headmaster (HI) (B-18), in response and acceptance submitted by the petitioner, in the interest of justice.

Any other relief which this Hon’ble Court deems fit and appropriate may be also awarded.”

1. I have heard the learned counsel for the petitioner and the learned Assistant Advocate General assisted by the Law Officer of the respondents.

4. There is no denying the fact that the petitioner was working in the University as Assistant Professor after obtaining the permission from his parent department under the Punjab Civil Services (Applications for Posts) Rules, 1987 and had retained lien period intact. He was already in government service when he was declared eligible and recommended by PPSC to be appointed for new assignment as Headmaster. The respondents have overlooked their authority in utter breach of law, in that, the petitioner was not obliged to provide another medical certificate, being already in government service. It is obvious and clear from the bare perusal of SOR.IV(S&GAD)-5-16/84 dated 18th April, 1984, that demand of fresh medical fitness certificate was negligent act on part of the respondents. It is abundantly clear that the respondents had to concede a precious right that accrued to the petitioner as they could not call upon the petitioner to produce such medical certificate for the purpose. Such requirement was mandatory only for first appointment in any Government department.

5. Examination of relevant SOR.IV(S&GAD)-5-16/84 dated 18th April, 1984, as adopted, explicitly reads, as under:

“I am directed to say that rules 3.2 to 3.6 of the Civil Service Rules (Punjab), Vol.I, Part-I require production of medical certificate of fitness on first entry into Government service. A question has arisen as to whether a Government servant who was medically found fit on his first appointment should again furnish medical certificate of fitness on his appointment to another post within or outside his parent department. According to Note 3, below Rule 3.2 of the rules ibid, a temporary Government servant who has already produced medical certificate in one office, should not, if transferred to another office without break in his service, be required to produce fresh certificate. All appointing authorities are therefore advised not to insist on the production of medical certificate of fitness on subsequent appointments in cases where a Government servant has already produced medical certificate on his first entry into government service provided that there is no break in his service.” (emphasis supplied)

This reveals that the Government had already issued instructions as pointed-out hereinabove to all the appointing authorities to abstain from foisting the production of fresh medical certificate of fitness upon any government servant on account of his/her another appointment in the Government department. In such eventuality, it was incumbent upon the respondents to issue appointment letter to the petitioner and its denial is tantamount to flagrant defiance of the law as it deprives the petitioner of the invaluable right already accrued to him in consequence of his worth demonstrated in the prescribed manner. The demand of a fresh medical fitness certificate which eludes the fruit he had to reap in the form of his new appointment was a careless attitude on the part of respondents who had erroneously discharged their authority in an unjust and unwarranted manner. The act of the respondents was patently in derogation to the law and, on the face of it, was illegal, unlawful and without any legal justification inasmuch as no fresh medical fitness certificate was required for appointment to another post particularly when the applicant/candidate was already performing the duties and holding a post as civil servant in same department of the Government.

6. It is not far-fetched to mention that the provisions of Rules No. 4 & 5 of the Punjab Civil Services (Applications for Posts) Rules, 1987, have further depicted such prospective appointments in the following manner:

“4. Forwarding of Applications.--(1) If any civil servant applies for permission and is otherwise eligible to appear at a competitive examination to be held by the Commission, his application shall be forwarded thrice but not more than thrice for each examination during whole of his service.

(2) If any civil servant applies for permission and is otherwise eligible for recruitment to any other post his application shall always be forwarded.

Explanation: The appointing authority may withhold permission to apply, if for reasons to be recorded in writing such permission is considered to be against public interest.

1. Release on Selection for Appointment to a Post for which application has been forwarded.--When a civil servant whose application has been forwarded in accordance with rule 4, is selected for appointment, he shall be released.”

According to these rules the application for another post of an employee could only be accepted if it was forwarded through the office of competent authority and thus, was enough to regard the fitness of that person as valid and consent of that department not to object to relieve him on his selection. The demand of respondents to produce a fresh medical certificate or No Objection Certificate from his existing department was nothing short of disregarding the rationale underlying the rules ibid and can only be declared as uncalled for. It is settled law that party should not be made to suffer for action or inaction of the authority, who was obliged to follow the law. The Hon'ble Supreme Court of Pakistan, vide judgment dated 11.06.2014, passed in C.P. No. 51-L of 2014 titled Ahsan Jabbar v. Government of the Punjab and others has held that if some fault was committed by the departmental authorities while assessing eligibility for appointment, the employee could not be deprived from his job due to faults of the department. A lawful right was emanated by the recommendation of PPSC and offer letter accepted by the petitioner, which was hampered/frustrated without any legal justification.

1. Another reason assigned for refusal to issue the appointment letter to the petitioner as Headmaster (BS-18) on the account that a period of 190 days had elapsed since the recommendations of Public Service Commission, is also not tenable. Suffice it to observe that neither the petitioner was a new appointee nor was the demand of fresh medical fitness certificate sustainable by any stretch of imagination. Although the inference of the respondents was not worth consideration, the respondents never wrote any letter to the Hospital concerned for petitioner’s medical examination following his acceptance of offer of appointment. Such inaction on their part smacks of indifferent and even apathetic conduct to thwart petitioner from exercising a right vested in him under the law. The act of the respondents flouted the relevant rules and turns out to be in utter derogation to the law. The respondents miserably failed to discharge the legal obligation rather breached their solemn responsibility. Even otherwise, the petitioner cannot be made victim of a wrongdoing of the authorities to which he was not at all guilty or at fault. It is but sheer violation of law to suggest deviating course in conflict with the Government Circular itself that permits any new incumbent to join the service without furnishing fresh medical fitness certificate. It is to be borne in mind that an employee ought not to be penalized or blamed for the faults or omissions on the part of employer in the recruitment process. Hence, it goes without saying that the denial of issuance of appointment letter to petitioner in terms of the recommendation of the Punjab Public Service Commission was without any rhyme and reason.

8. In view of the above, it becomes obvious and clear that the petitioner has been made victim of a wrong doing of the respondents, to which, the petitioner was not at all guilty or at fault. As noted

above, if there was any lapse it was on the part of the respondents. If any Circular, Notification or memorandum as noted above, had gone unnoticed by the respondents, it is not the mistake of petitioner who cannot be attributed any wrong, and the respondents cannot be allowed to take benefit of their own oversight, lapse or ignorance of law.

9. For the foregoing reasons, the action of the respondents qua non-issuance of appointment letter to the petitioner is hereby declared to be without lawful authority, illegal, contrary to the settled principle of law as well as the Rules & Regulations and therefore, the same are hereby set- aside being of no legal effect, with a direction to the respondents to issue appointment letter to the petitioner within a period of one month from the receipt of certified copy of this order, strictly in accordance with law.

Accordingly, this petition is allowed.

(Y.A.)

PLJ 2020 Lahore 653 (DB)

Present:Muhammad Ameer Bhatti and Atir Mehmood, JJ.

QAMAR KHURSHID etc.--Appellants

versus

LAND ACQUISITION COLLECTOR-I etc.--Respondents.

R.F.A. Nos. 208866 & 218784 of 2018, heard on 9.3.2020.

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

----S. 96--Land Acquisition Act, (I of 1894), Ss. 18, 20 & 50--Filing of reference--Partially allowed--Enhancement of compensation award--Entitlement for compensation--Loss of structure--Omission regarding impleadment of necessary party--Material illegality and irregularity--Determinations of compensation--Direction to--Initiating of fresh proceedings--Challenge to--A glaring omission to implead necessary party in Reference goes to very root of proceedings and therefore, appeal even before this Court filed by present appellants; operates as a material illegality and irregularity floating on surface, manifestly necessitating to hold that a necessary party has been condemned unheard at stage of proceedings of Reference by learned Referee Court and also makes this appeal incompetent in absence of a necessary party--Non-impleading of party in Reference would not affect rights of Ring Road Authority, on whose behalf case was contested; and which was constituted after promulgation of Act--Initiating fresh proceedings by directing applicants in Reference to file amended memo of parties for impleading Ring Road Authority as a respondent and permit it to file written statement, frame issues afresh and allow parties to record their complete evidence--However, if applicants of Reference adopt oral and documentary evidence earlier led by them, respondents would be at liberty to lead fresh evidence and thereafter Reference shall be decided in accordance with law--Appeal was allowed. [Pp. 656 & 657] A, B & C

Syed Liaqat Ali Bukhari, Advocate for Appellants.

Rai Sohail Saleem Khan, Advocate & Mr. M. Habib Ch., Advocate for Respondents.

Date of hearing: 9.3.2020.

Judgment

Muhammad Ameer Bhatti, J.--Through this common judgment, we intend to decide the above two appeals as both are directed against the judgment dated 07.02.2018 passed by the learned Senior Civil Judge (Judl.), Lahore, whereby Reference under Section 18 of the Land Acquisition Act, 1894, filed by the appellants in R.F.A. No. 208866/2018 (hereinafter called as “the appellants”), stood partially accepted and the compensation awarded to them was enhanced and decreed @ Rs. 12,00,000/- per marla alongwith 15% compulsory acquisition charges with 8% compound interest from the date of possession till actual payment. Additionally, the appellants were held entitled for compensation of loss of structure to the tune of Rs. 1,00,00,000/- (Ten Million) with 15% compulsory charges. For clarity of facts, the Land Acquisition Collector etc. (appellants in R.F.A. No. 218784/2018) are hereinafter referred to as “the respondents”.

1. Initially the Reference was filed by the appellants impleading the Land Acquisition Collector, Secretary (S&R)/District Collector Ring Road, Secretary Settlement/Executive District Officer Revenue Ring Road, Excise and Taxation Officer, Senior Member, Board of Revenue, Punjab, Lahore and Executive Engineer, Provincial Road Construction Division, Lahore. The learned Referee Court after recording evidence of the parties although enhanced the rate of compensation but not in terms of the claim of the present appellants, therefore, they preferred appeal bearing R.F.A. No. 208866/2018 against the decision of the learned Referee Court. On the other hand, the Land Acquisition Collector etc. filed R.F.A. No. 218784/2018 against the decision of learned Referee Court in regard to the enhancement of compensation.

2. During the course of arguments, it was noticed that the appellants filed an application for rejection of the appeal (R.F.A. No. 218784/2018 on the premise that it was filed by an incompetent person/Land Acquisition Collector; who being not aggrieved person against the decision of learned Referee Court; as the acquiring agency against whom the compensation stood enhanced, was only the competent authority/person to file the appeal.

When confronted, learned counsel for the respondents contends that after promulgation of The Lahore Ring Road Authority Act, 2011, an Authority has been constituted to look after the affairs of the Ring Road which had not been impleaded as a party in the Reference nor as respondent; and on the other hand Land Acquisition Collector was the respondent in Reference; hence, in such eventuality it could not be declared that the appeal filed by the Land Acquisition Collector was filed by incompetent person. On further query, he asserted that omission committed by the appellants in their Reference by not impleading the necessary party as a respondent is enough to vitiate all the Reference proceedings conducted/done by the learned Referee Court. At this juncture the learned counsel for the appellants supplicates to withdraw the application seeking rejection of respondents appeal and offer to decide both the appeals on the basis of material available on record. Whereas on the other hand, the learned counsel representing the respondents submits that the appellants, who were applicants before the learned Referee Court had not impleaded the Ring Road Authority (acquiring body of the land-in-question) as a respondent, therefore, in absence of Authority's representation neither these appeals nor the Reference before the Referee Court are proceedable as Authority had not been allowed to plead its case at the trial level, therefore, enhanced compensation claimed by the owner of the land-in-question without impleading the Authority as party, would render it as condemned unheard. Further submits that even in both the appeals, they are not party and non-impleadment of necessary party is a material illegality and irregularity in holding the trial which is sufficient to declare the proceedings conducted by the learned Referee Court illegal and without lawful authority.

1. We have heard the learned counsels for the parties and gone through record of the case.

5. A glaring omission to implead the necessary party in the Reference goes to the very root of the proceedings and therefore, the appeal even before this Court filed by the present appellants; operates as a material illegality and irregularity floating on the surface, manifestly necessitating to hold that a necessary party has been condemned unheard at the stage of the proceedings of Reference by the learned Referee Court and also makes this appeal incompetent in absence of a necessary party. The contention of the learned counsel for the appellants that the proceedings of acquisition were initiated on the request of Executive Engineer Provincial Road Construction Division, Lahore/Respondent No. 4 who is also Respondent No. 7 in this appeal and was also party in the proceedings before the Referee Court where he contested the Reference and adduced evidence, therefore, non-impleading of the party in the Reference would not affect the rights of the Ring Road Authority, on whose behalf case was contested; and which was constituted after promulgation of the Act ibid.

We are afraid, there is no substance in the argument of the learned counsel for the appellants. The Ring Road Authority (acquiring body of the land/subject matter) as contemplated in Sections 20 & 50(2) of the Act, 1894, was necessary or proper party in the proceedings of the Reference filed by the appellants (owners of acquired land) for the purpose of determination of the compensation by the Referee Court. By virtue of Sections 20 and 50 of the Land Acquisition Act, 1894, it was enjoined upon the Court not only to issue notice to the acquiring body of land but also ensure its presence besides granting opportunity to lead evidence. Meaning thereby acquiring body of land had all the rights of a necessary party in such legal proceedings.

The Executive Engineer Provincial Road Construction Division, Lahore was authorized by the C&W Department to work on behalf of the department in the acquisition process but he was not liable to sue or to be sued on behalf of the department except impleading the department itself even through that officer. Neither the C&W department nor subsequently constituted Ring Road Authority; even at the initial stage of the Reference which was filed in January, 2010 and the Ring Road Authority was constituted in the year 2011, was impleaded party in the Reference, therefore, any proceedings joined and conducted by Respondent No. 4/Executive Engineer, Provincial Road Construction Division, Lahore, (irrelevant person) either on behalf of C&W department or the Ring Road Authority are declared as having no legal value being carried out by an un-authorized person and could not be relied upon under the principle of ratification as envisaged under Section 196 of Contract Act (I of 1877). Reliance is placed on Muhammad Zakria and 3 others v. Bashir Ahmad (2001 CLC 595) wherein it has been held:

“The principle of ratification is subject to the limitation that the person ratifying the contract must, at least, in order to be bound, know fully all the material circumstances, under which the act is so done and that act, which is cited to be ratified must not be a void act. Reference in this behalf can be made to Abdul Majid and 2 others v. Waris Ali and another 1999 YLR 1668. As per Imperial Bank of Canada v. Mary Victoria Begley AIR 1936 PC 193, the principle of ratification can be pressed into service, if certain conditions are fulfilled. The relevant paragraph of the judgment is reproduced below:

“The first essential to the doctrine of ratification, with its necessary consequence of relating back, is that the agent shall not be acting for himself, but shall be intending to bind a named or ascertainable principal. Hence where the agent puts some of the principal's money in his pocket, there cannot be any question of ratification by the principal, as the agent cannot be deemed to have taken the money for himself as agent for the principal. If the act has been authorized, the contract between the principal and the agent would be the ordinary contract of loan.”

6. In view of the above, we allow the R.F.A. No. 218784/2018 and while disposing of R.F.A. No. 208866/2018 being infructuous as we set-aside the impugned judgment of the learned Referee Court; for initiating fresh proceedings by directing the applicants in the Reference to file the amended memo of parties for impleading Ring Road Authority as a respondent and permit it to file the written statement, frame the issues afresh and allow the parties to record their complete evidence. However, if the applicants of the Reference adopt oral and documentary evidence earlier led by them, the respondents would be at liberty to lead fresh evidence and thereafter the Reference shall be decided in accordance with law. Resultantly, R.F.A. No.

218784/2018 is accepted, case is remanded and R.F.A. No. 208866 is hereby disposed of being infructuous.

1. Parties are directed to appear before the learned Senior Civil Judge (Judl.) Lahore on 26.3.2020 who shall decide the matter in accordance with law.

(Y.A.) Appeal allowed

PLJ 2020 Lahore 658 [Bahawalpur Bench Bahawalpur]

Present: Mirza Viqas Rauf, J.

LAL KHAN and 2 others--Petitioners

versus

KAMRAN SALEEM and another--Respondents

C.R. No. 889 of 2015, decided on 27.10.2020.

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

----S. 115--Specific Relief Act, (I of 1877), S. 42--Suit for declaration and injunction--Ex-parte proceedings--Application for setting aside of ex-parte decree--Dismissed--Appeal--Dismissed--Right of defence was struck off--Challenge to--Initially petitioners tendered their appearance and also appointed their counsel, who after some dates opted not to appear--As already observed that even in initial phases of trial, petitioners were proceeded ex-parte however, ex-parte proceedings were set aside on their application--Petitioners after getting setting aside of ex-parte order should have been more vigilant in prosecuting their cause but instead they opted to keep themselves a loof from proceedings as a consequence initially their right of defence was struck off and later on they were again proceeded ex-parte--There is no cavil that -ordinarily parties should not be knocked out on basis of technicalities and instead their rights should be determined be merits but no party can be allowed to take refuge under said principle of law and to frustrate process of law at his whims--Conduct of petitioners is apparent and it evinces that they never remained serious to proceedings-- There are concurrent findings of facts recorded by both courts below, which are based on proper appraisal of evidence--Petitioners have failed to point out any misreading or non-reading of evidence persuading this Court to exercise revisional jurisdiction which even otherwise has a limited scope as contemplated under Section 115 of “CPC”--None of courts below have committed any illegality or material irregularity, while dismissing application of petitioners concurrently--As no illegality or material irregularity is pointed out by petitioners in concurrent findings of courts below, so exercise of revisional jurisdiction is unwarranted--Revision petition dismissed.

[Pp. 660, 661 & 662] A, B, C, D & E

Mian Ahmad Nadeem Arshad, Advocate for Petitioners.

Mr. Muhammad Tariq Khan, Advocate for Respondents.

Date of hearing: 27.10.2020.

Order

The petitioners were the defendants in the suit for declaration and injunction instituted by the respondents. The petitioners were proceeded ex-parte and finally suit was decreed videjudgment dated 24th June, 2005. An application for setting aside of ex-parte decree was moved by the petitioners which was resisted by the respondents, however, after framing of issues and recording of evidence of both the sides, application was dismissed through order dated 16th September, 2013. Feeling aggrieved, the petitioners though preferred an appeal before the learned Additional District Judge, Bahawalpur but same: was dismissed through judgment dated 29th September, 2015, which is now impugned in the instant petition under Section 115 of the Code of Civil Procedure (V of 1908).

1. Learned counsel for the petitioners contended that law favours the adjudication on merits instead of knocking out the parties on the basis of technicalities, It is added that application for setting aside of ex-parte decree was mainly dismissed on the ground of limitation, which conclusion is erroneous and against the law. Learned counsel submitted that both the courts below while dismissing the application for setting aside ex-parte decree have proceeded on wrong premises. It is contended that application of the petitioners though discloses sufficient cause but it was misconstrued. Learned counsel emphatically argued that concurrent findings are the result of gross misreading and non-reading of evidence.

2. On the contrary, learned counsel for the respondents submitted that the petitioners have played hide and seek with the process of law. He added that conduct of the petitioners is obvious from the record and they are not entitled for any equitable relief. Learned counsel defended the impugned judgment as well as order with hilt.

3. After having heard learned counsel for the parties that considerable length, I have perused the record.

4. Suit for declaration and permanent injunction was instituted by the respondents before the learned Senior Civil Judge, Bahawalpur on 18th September, 2003. The petitioners were proceeded initially ex-parte vide order dated 11th December, 2003, however, on their application they were allowed to join the proceedings through order dated 24th March, 2005. Suit was then fixed for submission of written statement but on failure of the petitioners to submit written statement their right of defence was struck off and while proceeding ex-parte against the petitioners, suit was ultimately decreed vide judgment dated 24th June, 2005. This followed an application for setting aside of ex-parte decree which was moved on 04th October, 2005. The application was seriously resisted by the respondents, who submitted their reply. From the respective stances of the parties, issues were accordingly framed. In support and contra to the issues both the sides produced their evidence. On the conclusion of the proceedings, application was dismissed on merits as well as being barred by time.

5. It is the claim of the petitioners that as they were the residents of remote area, so they were unable to establish contact with their counsel and as such they remained ignorant about the proceedings of the suit. In support, thereto, the petitioners examined Nazir Ahmad Chaudhary as AW1, Malik Jind Wada as AW2 and Ameer Bakhash as AW3. In addition to the oral account the petitioners also tendered certain documents in evidence. Contrary to this the respondents also led their evidence.

7. It is apparent from the record that initially the petitioners tendered their appearance and also appointed their counsel, who after some dates opted not to appear. As already observed that even in the initial phases of the trial, the petitioners were proceeded ex-parte vide order dated 11th December, 2003, however, ex-parte proceedings were set aside on their application vide order dated 24th March, 2005. It is, though one of the contentions of learned counsel for the petitioners that parties to the lis were in a process to amicably settle the matter in issue but this contention becomes of no relevance when it is established on the record that such effort was under process prior to the passing of order dated 24th March, 2005. The petitioners after getting setting aside of ex-parte order should have been more vigilant in prosecuting their cause but instead they opted to keep themselves a loof from the proceedings as a consequence initially their right of defence was struck off and later on they were again proceeded ex-parte on 10th June, 2005.

8. There is no cavil that -ordinarily parties should not be knocked out on the basis of technicalities and instead their rights should be determined be merits but no party can be allowed to take refuge under the said principle of law and to frustrate the process of law at his whims. The conduct of the petitioners is apparent and it evinces that they never remained serious to the proceedings. Article 164 of the Limitation Act, 1908 provides thirty days for an application seeking setting aside of ex-parte decree which reads as under:

| | | | | --- | --- | --- | | “164. By a defendant, for an order to set aside a decree passed ex-parte. | Thirty days | The date of the decree or, where the summons was not duly served, when the applicant has knowledge of the decree.” |

So far contention of learned counsel for the petitioners that in the circumstances the residuary article i.e. Article 181 of the Limitation Act, 1908 was applicable, it appears to’ be misconceived at the face of it in the light of principles laid down in the case reported as “Secretary Education Department, Government of N.-W.F.P., Peshawar and others versus Asfandiar Khan” (2008 SCMR 287).

9. Furthermore no sufficient cause has been disclosed by the petitioners for setting aside of ex-parte decree. The reasons assigned for the said purpose are clearly vague and non-persuasive. There are concurrent findings of facts recorded by both the courts below, which are based on proper appraisal of evidence. The petitioners have failed to point out any misreading or non-reading of evidence persuading this Court to exercise revisional jurisdiction which even otherwise has a limited scope as contemplated under Section 115 of “CPC”. The revisional jurisdiction cannot be exercised for deriving another possible view after re-appraisal of evidence. In the light of discussion made hereinabove, I am of the considered opinion that none of the courts below have committed any illegality or material irregularity, while

dismissing the application of the petitioners concurrently. As no illegality or material irregularity is pointed out by the petitioners in the concurrent findings of the courts below, so exercise of revisional jurisdiction is unwarranted.

1. In view of contemptuous conduct of the petitioners this petition is dismissed in limine with costs of Rs. 50,000/- which shall be deposited with the Deputy Registrar (Judicial) of this Court within thirty days, failing which the same shall be recovered from the petitioners as arrears of land revenue in accordance with law.

(Y.A.) Revision petition dismissed

PLJ 2020 Lahore 662

Present: Malik Shahzad Ahmad Khan, J.

ASIF ALI--Petitioner

versus

STATE etc.--Respondents

Transfer Appln. No. 57896 of 2020, decided on 24.11.2020.

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

----S. 526--Transfer application of pre-arrest bail petitions--Illegal harassment--Respondent No. 4 was advocate--Bogus zimnees--Pendency of pre-arrest bail petitions more than two months--I have, noted that an inquiry report of Naseer Ahmad Khan, Inspector/SHO, police station Cantt, District Okara conducted in an earlier case i.e., registered at police station City Depalpur has been annexed with present petition--Last paragraph of said inquiry report shows that abovementioned Muhammad Tanveer Aslam, who is beneficiary of above-referred case caused illegal harassment to Muhammad Asif petitioner of present case, who was accused in abovementioned earlier case i.e.,--It is also mentioned in inquiry report that Muhammad Tanveer Aslam Respondent No. 4 and his brother Naveed Aslam etc being in league with local police got recorded bogus zimnees and got declared Muhammad Asif Ali petitioner as a proclaimed offender--Said SHO further reported/recommended for initiation of departmental proceedings against concerned police officials of police station Cantt, District Okara--Counsel for petitioner has produced before Court a copy of licence of advocate in name of Muhammad Tanveer Aslam (Respondent No. 4)--Said licence has been issued by Punjab Bar Council--It is prima facie established that Respondent No. 4, is an advocate by profession--It is further noteworthy that pre-arrest bail petitions of Muhammad Tanveer Aslam (Respondent No. 4) and his co-accused are pending adjudication in abovementioned Court since September, 2020 and despite lapse of more than two months, same could not be decided, which prima facie shows that Muhammad Tanveer Aslam (Respondent No. 4), along with his companions has not been allowing, local Court to decide abovementioned pre-arrest bail petitions--Petition was allowed. [Pp. 663 & 664] A, B & C

Mr. Muhammad Ijrar Haider, Advocate for Petitioner.

Ms. Maida Sobia, Deputy Prosecutor General for State.

Mr. Muhammad Jamil Ashraf Chauhan, Advocate for Respondent No. 4.

Date of hearing: 24.11.2020.

Order

Instant petition has been filed by the petitioner for transfer of pre-arrest bail petitions of Respondents No2 to 5, titled “Sarfraz and 2 others vs. The State” and “Zqfar Iqbal alias Zafari vs. The State”, pending in the Court of Mr. Alam Sher, learned Additional Sessions Judge, Depalpur, District Okara to any other Court of competent jurisdiction out of District Okara.

1. Heard. This transfer petition has been filed by the petitioner on the ground that Muhammad Tanvir Aslam (Respondent No. 4), is an advocate by profession and he being in league with the members of the local Bar Association has made it impossible for the petitioner/complainant to prosecute his case before the abovementioned Court, therefore, the above-referred pre- arrest bail petitions may be transferred from the said Court.

3. Learned counsel for Respondent No. 4, though controverted the contentions of learned counsel for the petitioner/complainant by stating that no harassment or pressure has been caused against the petitioner by Respondent No. 4 but I have noted that an inquiry report of Naseer Ahmad Khan, Inspector/SHO, police station Cantt, District Okara conducted in an earlier case i.e., FIR No. 453/2017, registered at police station City Depalpur has been annexed with the present petition. The last paragraph of the said inquiry report shows that the abovementioned Muhammad Tanveer Aslam, who is beneficiary of the above-referred case caused illegal harassment to Muhammad Asif petitioner of the present case, who was accused in the abovementioned earlier case i.e., FIR No. 453/2017. It is also mentioned in the inquiry report that Muhammad Tanveer Aslam Respondent No. 4 and his brother Naveed Aslam etc being in league with the local police got recorded bogus zimnees and got declared Muhammad Asif Ali petitioner as a proclaimed offender. The said SHO further reported/recommended for initiation of departmental proceedings against the concerned police officials of police station Cantt, District Okara.

1. Learned counsel for Respondent No. 4, after arguing the case at some length denied the fact that Muhammad Tanveer Aslam (Respondent No. 4), is an advocate by profession and he submitted that if any proof is produced before the Court that the abovementioned respondent is an advocate by profession then he will not oppose the instant transfer application.

5. At this juncture, learned counsel for the petitioner has produced before the Court a copy of licence of advocate in the name of Muhammad Tanveer Aslam (Respondent No. 4). The said licence has been issued by the Punjab Bar Council.

6. In the light of above, it is prima facie established that Respondent No. 4, is an advocate by profession. It is further noteworthy that the pre-arrest bail petitions of Muhammad Tanveer Aslam (Respondent No. 4) and his co-accused are pending adjudication in the abovementioned Court since September, 2020 and despite the lapse of more than two months, the same could not be decided, which prima facie shows that Muhammad Tanveer Aslam (Respondent No. 4), along with his companions has not been allowing the local Court to decide the abovementioned pre-arrest bail petitions.

1. Keeping in view all the abovementioned facts, this petition is allowed. Consequently the pre-arrest bail petitions of Respondents No. 2 to 5, titled “Sarfraz and 2 others vs. The State” and “Zafar Iqbal alias Zafari vs. The State”, pending in the Court of Mr. Alam Sher, learned Additional Sessions Judge, Depalpur, District Okara are hereby withdrawn from the said Court and the same stands “transferred to the Sessions Court, Sahiwal. The learned Sessions Judge, Sahiwal may hear the! above-referred bail ‘petitions himself or entrust the same to any other Court of competent jurisdiction. Parties are directed to appear before the learned Sessions Judge, Sahiwal on 1.12.2020 at 9.00 a.m. The transferee Court shall decide the said bail petitions within a period of one week from 1.12.2020. The bail

petitions shall be decided, on way or the other, on their own merits, without being influenced by any observation made in this order.

(Y.A.) Petition allowed

PLJ 2020 Lahore 665 (DB)

Present: Muhammad Sajid Mehmood Sethi and Muzamil Akhtar Shabir, JJ.

MUHAMMAD ASLAM--Appellant

versus

PROVINCE OF PUNJAB through SECRETARY, AGRICULTUR, GOVERNMENT OF THE PUNJAB, LAHORE and others--Respondents

I.C.A. No. 22769 of 2019, decided on 30.04.2019.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3--Termination of service--Absence from duty--Filling of appeal after expiry of contract--Dismissed--Constitutional petition--Dismissed--Challenge to--Undeniably, contractual services of appellant were terminatedpassed by Respondent No. 3 on account of his absence from duty--Against aforesaid termination order, appellant preferred appeal in year 2018, which was rejectedpassed by Respondent No. 3--Appellant kept mum for a considerable period of more than 04 years--Even otherwise, no exception can be taken to, impugned findings qua maintainability of constitutional petitioned filed by a contract employee--Appeal was dismissed.

[P. 666] A

Rai Sajid Ali Kharal, Advocate, vice Mr. Mushtaq Ahmad Mohal, Advocate for Appellant.

Date of hearing: 30.04.2019.

Order

Through instant appeal, appellant has assailed order dated 15.11.2018, passed by learned Single Bench of this Court, whereby his constitutional petition challenging orders dated 27.01.2015 and 28.09.2018, whereby his services as Rodman were terminated and appeal was also dismissed, respectively, was dismissed on the ground that appellant’s services were not governed by statutory rules, therefore, writ petition is not maintainable.

1. At the very outset, learned counsel for appellant was confronted with the fact that services of appellant were terminated way back on 27.01.2015, whereas same was challenged by way of filing appeal in the year 2018 when the contract period also stood expired,. However, learned counsel for appellant, despite arguments at some length, could not give any satisfactory reply.

2. Heard. Available record perused.

4. Undeniably, the contractual services of appellant were terminated vide order dated 27.01.2015, passed by Respondent No. 3 on account of his absence from duty w.e.f. 06.09.2012 to 10.04.2014. Against aforesaid termination order, appellant preferred appeal in the year 2018, which was rejected vide order dated 28.09.2018, passed by Respondent No. 3. Appellant kept mum for a considerable period of more than 04-years. Even otherwise, no exception can be taken to the impugned findings qua maintainability of constitutional petitioned filed by a contract employee.

1. Learned counsel for appellant has failed to point out any illegality or legal infirmity in the impugned order, therefore, same is liable to be upheld in circumstances.

2. Resultantly, instant appeal, being devoid of merit, is hereby dismissed in limine with no order as to costs. .

(M.M.R.) Appeal dismissed

PLJ 2020 Lahore 666 (DB) [Multan Bench, Multan]

Present: Abid Aziz Sheikh and Muzamil Akhtar Shabir, JJ.

GOVERNMENT OF THE PUNJAB etc.--Appellants

versus

Syed MUHAMMAD SALEEM SHAH--Respondent

I.C.A. No. 158 of 2019, decided on 12.11.2019.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3--Non-recommendations of respondent--Departmental promotion--Constitutional petition--Allowed--Question of--Whether High Court can sit in judgment over subjective evaluation of fitness by competent authority--Determination--Non-consideration of objective criteria for determination of fitness--Jurisdiction--Challenge to--Single Bench has neither examined subjective evaluations nor considered objective criteria for determination of fitness--Further, Single Bench has not come to conclusion that Authority had passed order in colourable exercise of power or order was without jurisdiction or against law or mala fide--Single Bench in impugned order observed that non recommendation of case of respondent was without reason and justification, however, said finding is not supported by record; where in report and parawise comments, specific reference has been made to RPO/D.G Khan’s report whereby respondent was reported to be corrupt and his overall integrity was below average. [P. 671] A & B

1991 SCMR 1129.

Constitution of Pakistan, 1973--

----Art. 212--Term & conditions of service--Jurisdiction-- Under Article 212 of Constitution, Tribunal will have exclusive jurisdiction in matters relating to terms and conditions of person in service of Pakistan--In term of Article 212, of Constitution., Punjab Service Tribunal was constituted under Punjab Service Tribunal Act, 1974 (Act). [P. 671] C

Punjab Service Tribunals Act, 1974 (IX of 1974)--

----S. 4(1)(b)--Term & conditions of service--Jurisdiction--Challenge to--Any final order passed by departmental Authority in respect of any terms and conditions of his service may prefer an appeal to Tribunal but in respect of decision or orders of departmental Authorities determining fitness or otherwise of a person before promotion to a, higher grade, Service Tribunal will have no jurisdiction--This provision explicitly shows that departmental Authorities shall have exclusive jurisdiction to determine fitness of person to be promoted or not to a higher grade and even Service Tribunal which has exclusive jurisdiction in matter relating to terms and conditions of service (under Article 212 of Constitution and provisions of Act), will have no jurisdiction to question such determination by department on question of fitness--Therefore, in absence of jurisdictional defect, mala fide, patent illegality or colourable exercise of power in order, interference through constitutional petition in matter of fitness and substituting opinion of departmental Authorities relating to fitness for promotion, would amount to circumvent intention of legislation. [P. 672] D

2007 SCMR 682.

Mian Muhammad Azhar Saleem Kamlana, AAG/Advocate alongwith Muhammad Hassan Tahir, Inspector DPO Office, Muzaffargarh for Appellants.

Ch. Abdul Sattar Goraya, Advocate for Respondent.

Date of hearing: 12.11.2019.

Judgment

Abid Aziz Sheikh, J.--This appeal has been filed against the order dated 27.2.2019 (impugned order) passed by leaned Single Bench of this Court whereby constitutional petition filed by respondent was allowed.

1. Brief facts are that through Writ Petition No. 2040/2015, the respondent assailed minutes of meeting of Departmental Promotion Board (DPB) held on 09.12.2014, whereby petitioner was not recommended for promotion to the rank of S.P (BS-18). The learned Single Bench finally allowed the writ petition and directed DPB to reconsider the case of respondent for promotion in terms of direction issued by learned Single Bench. The appellant department being aggrieved has filed this Intra Court Appeal.

2. Learned Law Officer submits that impugned order was passed without taking into consideration that the conduct and efficiency of the respondent was duly considered by DPB before not recommending him for promotion. Further submit that subjective evaluation and objective criteria mentioned in the report and parawise comments were also not considered in impugned order.

3. Learned counsel for the respondent on the other hand submits that matter being relating to the fitness of a civil servant, the constitutional petition was maintainable. He further submits that record of respondent was unblemished, therefore, order dated 09.12.2014 passed by DPB was lawfully set aside by the learned Single Bench.

4. We have heard the arguments of learned counsel for the parties and perused the record. The relevant part of minutes of DPB minutes held on 09.12.2014 for not recommending the case of respondent for promotion to rank of SP (BS-18) is reproduced hereunder:

“In compliance with the directions of the Hon’ble Lahore High Court, Multan Bench dated 29.4.2014 and order dated 27.11.2014, case of the petitioner was considered by the Board and discussed at length. It was observed that the officer is not capable of critically analyzing cases. He is not emotionally mature enough to shoulder responsibilities of higher post. His behavior with public is also not up to the mark and does not enjoy good reputation. Moreover, he is of doubtful integrity and professionally incompetent. Promoting such an offer will send wrong message to rank and file of Police as well as to the general public. The Board, therefore, unanimously decided that the officer may not be recommended for promotion to the rank of SP/BS-18 on regular basis “.

For convenience, Para 7 and 8 of the report and parawise comments filed by the department in Writ Petition No. 2040/2015 are also reproduced hereunder:

“Police Department has devised a mechanism whereby reports about financial integrity, professional competency, professional efficiency/effectiveness, behavior with staff and public (accessible to general public or not) and general reputation etc are obtained from concerned ‘ Regional Police Officers and Addl: Inspector General of Police, Special Branch regarding all DSPs. Therefore, vide IGP office memo: No. 2460/EXEC-II, dated 10.7.2014 such report was sought from all RPOs/Addl: IGP, Special Branch.

As per RPO/D. G. Khan’s report submitted vide memo No. 31113/EA-I, dated 16.7.2014 (Annexure-I) petitioner was “Reported to be corrupt” general reputation is controversial and his overall category was below average. Promoting such an officer to the rank of SP would adversely affect the image of the department. Moreover, it would also compromise public service delivery. Therefore, the petitioner was superseded in large public interest and to make a difference/distinction between good and bad police officer.”

1. The perusal of aforesaid minutes of DPB meeting held on 09.12.2014 shows that case of respondent for promotion was considered by the DPB and discussed at length, however, DPB observed that officer is not capable of critically analyzing cases, he is not emotionally mature enough to shoulder responsibilities of higher post, his behaviors with the public is not up to the mark and he does not enjoy good reputation. The DPB also observed that respondent has doubtful integrity and professionally incompetent. It was for above reasons, that DPB unanimously decided not to recommend the case of respondent for promotion to the rank of S.P (BS-18) on regular basis. The above assessment of DPB was subjective assessment based upon objective criteria and mechanism devised by the department as explained in para 7 and 8 of the report and parawise comments filed by the department.

2. Normally, the question of determination of fitness of a person to be promoted, is not capable of being scrutinized on the basis of judicially manageable standards. The fitness introduces an element of subjective evaluation on the basis of objective criteria, where substitution of the opinion of the competent Authority by the Court is not possible. However, where the Authority competent to award promotion or to appoint to a particular post, acts in violation of law, in excess of jurisdiction, without jurisdiction or in colourable exercise of power conferred on it, only then extra ordinary constitutional jurisdiction of this Court can be invoked under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). The record shows that in present case, the department itself has devised objective criteria by issuing policy guidelines and developing method for assessment of the performance of the officer for the purpose of promotion. The said assessment is based upon subjective opinion of the evaluation reports. This Court cannot sit in judgment over said subjective evaluation but can only examine if objective criteria was followed or not by the competent Authority.

3. The legal question whether this Court can sit in judgment over subjective evaluation of fitness by the competent Authority, has also been discussed by the Hon’ble Supreme Court in case of Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui (1991 SCMR 1129), where it is held that:

……. The question of eligibility relates primarily to the terms and conditions of service and their applicability to the civil servant concerned. Fitness introduces an element of subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent authority is not possible, by that of a Tribunal or a Court. It is in this background that the question of fitness or suitability for promotion has always been considered to be exclusively within the jurisdiction of the competent authority not shared by the Court or Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification.

In case of Muhammad Iqbal Executive District Officer (2007 SCMR 682), it is held as under:

There may be no cavil with the proposition that the question of promotion rests within the jurisdiction of competent authority, which would not be ordinarily interfered with by a Court of law but where the authority competent to award promotion or to appoint to a particular post acts in violation of law, in excess of jurisdiction, without jurisdiction or in colourable exercise of powers conferred on him, extraordinary jurisdiction of the High Court in terms of Article 199 of the Constitution can always be invoked for redressing the wrong.

9. In the above context the perusal of impugned order shows that learned Single Bench has neither examined subjective evaluations nor considered the objective criteria for determination of fitness. Further, learned Single Bench has not come to the conclusion that Authority had passed the order in colourable exercise of power or order was without jurisdiction or against law or mala fide. In absence of any of such discussion and conclusion, the learned Court could not come in aid to the respondent by setting aside the subjective evaluation by the competent Authority regarding fitness of the petitioner. Though, the learned Single Bench in impugned order observed that non recommendation of case of the respondent was without reason and justification, however, the said finding is not supported by record; where in report and parawise comments, specific reference has been made to the RPO/D.G Khan’s report dated 16.7.2014, whereby respondent was reported to be corrupt and his overall integrity was below average.

10. There is another important legal aspect of the matter, which requires legal consideration of this Court. Under Article 212 of the Constitution, the Tribunal will have exclusive jurisdiction in matters relating to terms and conditions of person in the service of Pakistan. In term of Article 212, of the Constitution., the Punjab Service Tribunal was constituted under Punjab Service Tribunal Act, 1974 (Act). For convenience, Section 4(l)(b) of the Act is reproduced hereunder:

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.--

(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade; and

11. The plain reading of Section 4 sub-section (1) and (b) of the Act shows that any civil servant aggrieved by any final order passed by departmental Authority in respect of any terms and conditions of his service may prefer an appeal to the Tribunal but in respect of decision or orders of departmental Authorities determining the fitness or otherwise of a person before promotion to a higher grade, Service Tribunal will have no jurisdiction. This provision explicitly shows that departmental Authorities shall have exclusive jurisdiction to determine the fitness of person to be promoted or not to a higher grade and even Service Tribunal which has exclusive jurisdiction in matter relating to terms and conditions of service (under Article 212 of the Constitution and the provisions of the Act), will have no jurisdiction to question such determination by department on question of fitness. Therefore, in absence of jurisdictional defect, mala fide, patent illegality or colourable exercise of power in the order, the interference through constitutional petition in matter of fitness and substituting opinion of departmental Authorities relating to fitness for promotion, would amount to circumvent the intention of legislation.

1. In view of above discussion, the instant appeal is allowed and impugned order dated 27.2.2019 passed by learned Single Bench is set aside.

(M.M.R.) Appeal allowed

PLJ 2020 Peshawar 1 (DB)[Mingora Bench (Dar-ul-Qaza), Swat]

Present: Muhammad Ghazanfar Khan and Syed Arshad Ali, JJ.

Dr. MUHAMMAD MUNIB--Petitioner

versus

KHYBER PAKHTUNKHWA PUBLIC SERVICE COMMISSION through Chairman and 5 others--Respondents

W.P. No. 371-M of 2018 with C.M 521-M of 2018 (N), decided on 11.2.2019.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Advertisement for post of Assistant Professor--Test and interview was conducted--Name of respondent was not induced in merit list--Filling of writ petition--Allowed with directions for issuance of call letter--Inclusion of name--Filling of application for inquiry against respondent in respect of false misrepresentation and concealment of information--Rejected--Recommendations for appointment of respondent basic required qualification--Challenge to--On merit Respondent No. 6 is higher than present petitioner--Although Petitioner has leveled allegation that said Dr. Bushra who was member of interview panel is close relative of Respondent No. 6, however be did not file any evidence regarding same--Even said Dr. Bushra has not been made as party to this petition--There is nothing on record regarding relation of Dr. Bushra with Respondent No. 6 hence this bald allegation is without any substance--Dr. Bushra was course supervisor of Respondent No. 6 in his M.Phil program, it will not raise a presumption that she would have favored Respondent No. 6--Even otherwise, Constitutional Court has no jurisdiction to determine factual controversy between parties which otherwise required elaborated inquiry including recording of evidence--Degree awarded to Respondent No. 6 still holds field, therefore has been validly considered for impugned post as essentially KPK PSC had no mandate to annul any degree obtained by a candidate-- Objections raised by present petitioner are misconceived--Petition was dismissed. [Pp. 4, 5 & 7] A, B, C, D & E

2000 SCMR 998 ref.

Mr. Liaquat Ali, Advocate for Petitioner.

Mr. Wilayat Ali Khan, A.A.G for official Respondents.

Khwaja Salahuddin, Advocate for Respondent No. 6.

Date of hearing: 11.2.2019

Judgment

Syed Arshad Ali, J.--Through the instant Writ Petition Dr. Muhammad Munib the petitioner has invoked the Constitutional jurisdiction of this Court with the following prayer:

“It is therefore, humbly prayed that on acceptance of this writ petition to declare that the rejection of the petitioner to the post mention above by the Respondent No. 1 is based on malafide without any reason is illegal without lawful authority and to direct Respondent No. 1 to appoint petitioner against post of Assistant Professor according to the given criteria without any discrimination and set aside notification of Respondent No. 1 any other efficacious and equitable relief(s) as this Honorable Court may deem fit and proper under the circumstances of this writ petition.”

1. It is averred in the petition by the petitioner that he is a Doctor by profession and performing his duty as Assistant Professor at Community Medicine Department Saidu Medical College, Swat in his own pay and scale. The Respondent No. 1 i.e the Khyber Pakhtunkhwa Public Service Commission through an advertisement Bearing No. 02/2017 dated 22.03.2017 had advertised certain posts including the post of Assistant Professor Community Medicine at Saidu Medical College, Swat. The petitioner as well as the Respondent No. 6 and other candidates had applied for the post of Assistant Professor which was lying vacant in Community Medicine at Saidu Medical College, Swat. The Respondent No. 1 had conducted test for the said post which was passed by the present petitioner as well as the Respondent No. 6. However, as per service rules the Respondent No. 6 was not included in the merit list as he allegedly did not possess the required three years teaching experience. Against that the said Respondent No. 6 had filed a Writ Petition Bearing No. 808-M of 2017 before this Court for redressal of his grievance which was allowed with direction to the Respondent No. 1 to issue call letter to the said respondent and include him in the process of appointment for the subject post. In compliance of this Court direction, the Respondent No. 6 was included in the merit list and was called for interview along with the present Petitioner. However, when the Respondent No. 6 was included in the merit list, then the present petitioner had filed an application before the Respondent No. 1 for inquiry against the said respondent in respect of false, mis-representation and concealment of information. The said application filed by the petitioner was rejected and the Respondent No. 6 being top on the merit list was recommended against the subject post.

2. Respondents. No. 1 & 3 were put to notice who filed their para-wise comments and contested the writ petition. The Respondent No. 1 in his comments has stated that the Respondent No. 6 Dr. Naeemullah was initially rejected on the ground that he did not possess the required three years experience as per service rules but later he filed a Writ Petition Bearing No. 808-M of 2017 before this Court which was allowed and as per direction given therein, the Respondent No. 6 was called for interview and thereafter, he was recommended against the impugned post. Whereas, the Respondent No. 3 in his comments has stated that the Respondent No. 6 Dr. Naeemullah was the only candidate holding M.Phil. degree in the Community Medicines which was the basic qualification required for the impugned post and he has also been awarded gold medal, therefore he was recommended against the post of Assistant Professor Community Medicine in Saidu Medical College, Swat.

3. Arguments of learned counsel for the parties were heard and record of the case was perused with their able assistance.

4. For the post of Assistant Professor Community Medicine Saidu Medical College, Swat, the present petitioner as well as the Respondent No. 6 were the only candidates. According to the advertisement, the qualifications for the impugned post are as follow:--

i. MBBS (duration of 5 or 6 years) or equivalent medical qualification recognizee by the PM & DC;

ii. FCPS/Ph.D (duration of 4 years or qualification with other nomenclatures, in respective basic science subject of equivalent qualification recognized by the PM&DC;

iii. M. Phil (duration of 2 years) or qualification with other nomenclature, in respective basic science subject or equivalent qualification in the respective specially recognized by PM&DC and three years teaching experience as Lecturer/ Demonstrator in respective basic science subject duly certified by PM&DC in case of experience gained in private sector medical college.

6. Admittedly on merit the Respondent No. 6 is higher than the present petitioner, however the petitioner has challenged the candidature of the Respondent No. 6 on the following grounds:--

i. That Dr: Bushra who was the member of the interview panel was closely related to the Respondent No. 6, therefore under para 32(2) of the Public Service Commission Khyber Pakhtunkhwa Regulations, 2003 she was not entitled to interview the Respondent No. 6. The said para is reproduced as under:--

“32(2): When a near relative of the Chairman or a Member, is being interviewed he shall not be present during the interview of such candidates.”

He has also claimed that the said Dr. Bushra was the supervisor of the Respondent No. 6 in his M.Phil program.

ii. That the Respondent No. 6 had acquired his M.Phil degree from KMU in the year 2015 while serving as Demonstrator at Saidu Medical College from 2013 to 2015 without obtaining any extra ordinary leave and received full pay and allowances during the above period of service which is against the Section 7 (2) of the Khyber Pakhtunkhwa (Appointment), Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011 (‘The Act’).

iii. That the Respondent No. 6 has obtained MPH degree in the same year from Abdul Wali Khan University Mardan in which he had obtained M.Phil degree from KMU, therefore he could not obtained two degrees in one year as per policy/Notification of HEC Bearing No. dual degree/ad-1/qa/hec2015/674.

1. Thus, we would address the aforesaid objections keeping in view the record and law on the subject.

i. Although the petitioner has leveled the allegation that the said Dr. Bushra who was the member of the interview panel is the close relative of the Respondent No. 6, however he did not file any evidence regarding the same. Even the said Dr. Bushra has not been made as party to this petition. This allegation was denied by the Respondent No. 1 in his comments, however has frankly stated that the KPK Public Service Commission was not aware that Dr. Bushra was the course supervisor of the Respondent No. 6 while he was pursuing his M.Phil program. In this regard, the petitioner had filed an application before the Chairman Khyber Pakhtunkhwa Public Service Commission on 19.01.2018 after the interview which was conducted on 10.01.2018. Since, there is nothing on record regarding the relation of Dr. Bushra with the Respondent No. 6, hence this bald allegation is without any substance. As far as the fact that Dr. Bushra was the course supervisor of the Respondent No. 6 in his M.Phil program, it will not raise a presumption that she would have favored the Respondent No. 6. Even otherwise, the Constitutional Court has no jurisdiction to determine the factual controversy between the parties which otherwise required elaborated inquiry including recording of evidence. In this regard, reliance can be placed on 2000 SCMR 998 titled “Syed Asif Majeed & 5 others vs ADC. (C)/SC (L), Lahore & 15 others”, wherein it has been held by the august Supreme Court of Pakistan that: “In addition thereto, it was rightly observed by the learned Judge of the Lahore High Court that the entire controversy revolved around questions of fact and needed an elaborate inquiry including recording of evidence, which exercise could not be undertaken in exercise of the Constitutional jurisdiction.”

ii. In support of the 2nd objection, the petitioner has placed reliance on Sections 7 & 8 of Act. For ready reference, the said sections are reproduced as under:

1. Postgraduate Medical Education.-­(1) The Health Department, on the basis of objective need assessment and analysis, shall determine the intake number of Trainee Medical Officers (TMOs) in Postgraduate Medical Institute (PGMI) and Junior Registrars in Tertiary Care Hospitals every year. This stipulated number shall not exceed in any case.

(2) Any doctor selected or permitted for postgraduate medical training shall be treated on leave without pay and may be entitled only for stipend fixed by Government from time to time for such training.

(3) A doctor selected or permitted for postgraduate medical training shall provide surety bond prescribed by Government ensuring that upon completion of his studies for which he was initially selected, shall compulsorily serve for three years in the district of his domicile and in case of non-availability of a post in the district of domicile, he shall serve for three years in the rural area.

(4) For the purpose of sub-section (3), the doctor shall also provide guarantee of two government officers.

(5) In case of violation of sub-section (3), Government shall serve one month notice upon the doctor for resumption of duty, failing which the amount shall be recovered from him or from the guarantor, as the case may be.

1. Provisions relating to doctors applv to lecturers and instructors.---

The provisions relating to doctors in Section 7 of this Act shall mutatis mutandis apply to Lecturers and instructors.

Perusal of Section 7 of the Act would show that the same procedure applies to admission in Postgraduate Medical Institute for undergoing the training of FCPS, whereas, in the present case, the Respondent No. 6 was pursuing his studies for his M.Phil program. Hence, this objection is also misconceived.

iii. In regard to 3rd objection, the petitioner has placed on record the relevant policy barring the candidate to obtain certain degrees simultaneously. The relevant para of the said policy is reproduced as under:

| | | | | | --- | --- | --- | --- | | S.No. | Degree I | Degree II | Policy Decision | | 2 | Bachelor/Master degree obtained in regular mode in the morning session in one University | Bachelor/Master degree obtained in regular mode in the morning session in different University | Degrees with time clash are not allowed. | | 3 | Bachelor/Master degree obtained in regular mode in the morning session in one University | Bachelor/Master degree obtained in regular mode in the evening session in the same University | This combination of degrees is allowed provided that: a) Admission requirements are met. b) Written permission is obtained from university before joining programs. |

1. The close perusal of the said policy would show that the same is not applicable to the case of Respondent No. 6 because in KMU he was pursuing his M.Phil program, whereas in Abdul Wali Khan University, he was pursuing his Master program. Hence, the above said restriction, if any is applicable only for simultaneously obtaining two Bachelor or Master Degrees. Even otherwise, the said policy is effective from fall semester 2015, whereas the Respondent No. 6 had completed the course in the year 2015, therefore the said policy has not retrospective effect.

9. Be that as it may, the said degree awarded to the Respondent No. 6 still holds the field, therefore has been validly considered for the impugned post as essentially the Khyber Pakhtunkhwa Public Service Commission had no mandate to annul any degree obtained by a candidate.

10. In this view of the matter, the objections raised by the present petitioner are misconceived and accordingly this petition having no merit is hereby dismissed.

(Y.A.) Petition dismissed

PLJ 2020 Peshawar 8

Present: Ikramullah Khan, J.

FARID KHAN--petitioner

versus

FAZLA QADIR and others--Respondents

C.R. No. 350-P of 2008, decided on 13.2.2019.

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

----S. 11--Res-judicata--Trial Court had neither framed any issue in regard to question of resjudicata nor such plea had alleged by respondents in their pleadings. [P. 10] A

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

----S. 115--Suit for declaration--Dismissed--Appeals--Dismissed--Consolidated judgment--Mortgage of property--Usufructory mortgage--Non-redemption of property within prescribed period--Deprivation of lawful owner--Premium of ownership--Civil revision accepted--Challenge to--No any copy of suit filed by petitioner prior to one in hand, had ever exhibited by trial Court nor by learned Appellate Court, while I failed to locate such documents on original record of case--Respondents had never instituted any suit for purchase or sale of suit property within prescribed period of limitation as well as by petitioner to redeem suit mortgage property--Respondents had not succeeded in getting decree on basis of prescription before target date, so they could not be allowed to claim ownership of suit property on ground that as petitioner had not redeemed suit property within prescribed period of 60 years as such they had automatically or by dent of Section 28 of Limitation Act had become full owners--It is settled principle of law that mortgagee steps into shoes of his mortgager--As respondents were usufructuary mortgagee, therefore, on to redeem suit property, petitioner would relegate to his previous position as their ancestral were in suit property and no other co-sharer would be effected by to redeem suit property, therefore, other co-sharers could not be treated in present facts and circumstances of case to be either necessary or proper party--I safely hold that findings of learned Courts below are not sustainable, who had not only misread and non-read law but also evidence. [Pp. 10 & 11] B, C, D & H

Limitation Act, 1908 (IX of 1908)--

----Ss. 20(2) & 28--Usufructuary mortgage--Deprivation of lawful owner--Mortgage in question is admittedly usufructuary mortgage, so provisions of Section 20 (2) of Limitation Act is fully applicable to case in hand--Provisions contained in Section 28 of Limitation Act, 1908 had been declared to be repugnant to injunction of Islam, while logic behind such declaration was that no lawful owner could be deprived of his right merely by efflux of time nor a person enjoying possession for a long time could be awarded with premium of ownership—Civil Revision accepted. [Pp. 11 & 12] E & F

Mr. Mazullah Barkandi, Advocate for Petitioner.

Mr. Ahmad Ali Khan, Advocatefor Respondents.

Date of hearing: 13.2.2019.

Judgment

Through the instant Civil Revision petition, petitioner has challenged the impugned Judgment dated 08.11.2007, rendered by the learned Additional District Judge, Swabi, whereby, appeal, filed by the petitioner against the Judgment dated 30.07.2004 of the learned Civil Judge, Swabi, was dismissed.

1. Briefly stated facts of the case as per petition in hand are that petitioner filed a suit regarding declaration to the effect that he is owner in possession of property measuring 114-Kanal 01-Marla, situated at Batakera, Tehsil and District, Swabi, which was contested by the respondents by filing their written statement. The learned Trial Court after conclusion of trial, dismissed the suit of the petitioner vide Judgment dated 30.07.2004. Feeling aggrieved by the said Judgment dated 30.07.2004, two appeals were separately preferred, one by Farid Khan and the other by Mst. Shaista Naz etc, before the Appellate Court but the learned Appellate Court below vide its consolidated Judgment dated 08.11.2007 dismissed both the appeals. Hence, the instant Civil Revision petition.

2. Learned counsel for petitioners contended that the impugned judgment is against law and evidence on record; that the learned Courts below have fallen in error of misreading and non-reading of evidence as well as the law which has occasioned gross miscarriage of justice.

3. On the other hand, learned counsel for respondents argued that on account of time barred, mortgage and plaint, in term of Article 147 of the Limitation Act, 1908 the title of respondents. had matured and have become owners, therefore, the findings of learned Courts below which are based on proper appreciation of law, cannot be interfered with by this Court in exercise of its revisional jurisdiction.

4. I have heard learned counsel for the parties and have gone through the record.

5. Although petitioners had instituted a suit for declaration to the effect that the entries in record of rights to the extent of mortgage of the property in hand of respondents were illegal, as the petitioner had already redeemed the suit property but in alternative petitioner had prayed for decree of redemption of the suit property on payment of Rs. 1000/-.

6. As the first claim, that the suit property had redeemed by the petitioners at some occasion before the institution of the suit is not proved, however, in light of statement of Revenue officials and perusal of the Revenue papers, placed on record, this fact could not be denied that the suit property had mortgaged by predecessor-in-interest of petitioner in the year 1870 at the hand of predecessor-in-interest of respondents. Respondents had not claimed to be owner by purchase of the property, therefrom the predecessor-in-interest of petitioner, however, had claimed to be co-sharer in the joint khata, on account of purchase of shares of other co-sharers but had not put forwarded any claim of ownership over the suit property on basis of any sale deed except that, they are in continuous possession of the land on account of mortgage of the property, for more than 100 years.

7. The learned Appellate Court has dismissed the suit of petitioner on the grounds of limitation, non-joinder and on account of res-judicata.

8. According to the learned Appellate Court, prior to the institution of the present suit, petitioner had institution another suit on the same title against the same respondents in regard to the same suit property Bearing No. 360/1 which had dismissed by learned Trial Court on 26.02.1992.

9. The appeal against the said impugned Judgment had also dismissed by learned Appellate Court on 01.11.2000 and the Civil Revision by this Court had also dismissed.

11. But astonishingly, the learned Trial Court had neither framed any issue in regard to question of resjudicata nor such plea had alleged by respondents in their pleadings.

12. No any copy of the suit filed by the petitioner prior to the one in hand, had ever exhibited by learned Trial Court nor by the learned Appellate Court, while I failed to locate such documents on the original record of the case.

1. Therefore, the findings of learned Appellate Court in this regard could not sustain being beyond the pleadings of parties and evidence on record.

2. Insofar as the question of limitation for redemption of mortgaged property is concerned, no doubt, in term of Article 148 of the Limitation Act, 1908, 60 years has been prescribed for the purpose, but at the same time the provisions contained in Article 147 of the Act ibid could not be ignored, which reads as:--

| | | | | --- | --- | --- | | By a mortgagee for foreclosure or sale | Sixty year | When the money secured by mortgage becomes due. |

15. The record reveals that respondents had never instituted any suit for purchase or sale of the suit property within the prescribed period of limitation as well as by the petitioner to redeem the suit mortgage property, while in the meanwhile, the Federal Shariat Court and Appellate Shariat Court of the Supreme Court of Pakistan rendered the landmark Judgment in case titled “Maqbool Ahmad vs. Govt. of Pakistan” (1991 SCMR 2063), whereby it is held that no decree can be passed on the ground of adverse possession after 31.08.1991 and as a result of Section 28 of the Limitation Act as well as Article 144 of the same Act both were declared to be repugnant to injunction of Islam and both the above provisions of law, are not more part and parcel of the statute book of Limitation Act, 1908.

16. If any mortgagee failed to get decree in his favour before the target date no decree of prescription can be passed in his favour and no suit can be filed after the said target date. Reliance be placed on the Judgment of the Apex Court, rendered in case titled “Durranai and 35 others vs. Hamidullah Khan and 15 others” (PLJ 2007 SC 346).

17. However, respondents as stated hereinabove, had not succeeded in getting decree on basis of prescription before the target date, so they could not be allowed to claim ownership of the suit property on the ground that as petitioner had not redeemed the suit property within the prescribed period of 60 years as such they had automatically or by dent of Section 28 of the Limitation Act had become full owners.

18. The other legal aspect of this case is that the mortgage in question is admittedly usufructuary mortgage, so the provisions of Section 20(2) of the Limitation Act is fully applicable to the case in hand. According to Section 20(2) of the Limitation Act, receipt of rent or usufruct of mortgage had by mortgage in possession would be deemed to be acknowledgment of payment of debt. Thus, time would be deemed to be from date of such acknowledgment. Receipt of produce on every harvest would be deemed as an acknowledgment giving fresh start to period of limitation.

19. The provisions contained in Section 28 of the Limitation Act, 1908 had been declared to be repugnant to injunction of Islam, while the logic behind such declaration was that no lawful owner could be deprived of his right merely by efflux of time nor a person enjoying possession for a long time could be awarded with premium of ownership. The provisions contained in Section 20 of the Limitation Act, 1908 reads as:--

“20. Effect of payment on account of debt or of interest on legacy.--

(1) Where payment on account of debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy, or by his duly authorized agent, a fresh period of limitation shall be computed from the time when the payment was made.

Effect of receipt of produce of mortgaged land.

(2) Where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment for the purpose of sub-section (1)”.

1. Reliance in this regard shall be placed on judgment of this Court rendered in case titled “Gul Badan and 19 others vs. Rasheed-ur-Rehman and others” (2016 MLD 1319) and case titled “Bilawar Khan vs. Amir Sabar Rahman and others” (PLD 2013 Peshawar 38).

21. Insofar as non-impleadment of others co-sharers were concerned, no suit could be defeated on this score alone in view of the provisions, contained in Order-I Rule-9, CPC while the instant case is not for partition of Village Shamilat or possession therefrom other co- sharers. It is settled principle of law that mortgagee steps into shoes of his mortgager. As respondents. were usufructuary mortgagee, therefore, on to redeem the suit property, petitioner would relegate to his previous position as their ancestral were in the suit property and no other co-sharer would be effected by to redeem the suit property, therefore, other co-sharers could not be treated in the present facts and circumstances of the case to be either necessary or proper party.

22. In view of the above mentioned reasons, I safely hold that the findings of learned Courts below are not sustainable, who had not only misread and non-read the law but also the evidence.

1. Therefore, this Civil Revision petition is accepted and allowed. The impugned Judgments of the learned Courts below are set aside and the plaint of the petitioner is decreed to the extent of alternative relief they asked for subject to payment of Rs. 1000/- which shall be deposited with the learned Executing Court, prior to filing of the execution petition but not later than three months of getting attested copy of this Judgment.

(Y.A.) Civil Revision Allowed

PLJ 2020 Peshawar 13 (DB)

Present: Waoar Ahmad Seth, CJ. and Abdul Shakoor, J.

AMAN-UL-HAQ--Petitioner

versus

STATE through Advocate General KPJ and 8 others--Respondents

W.P. No. 4626-P of 2018, decided on 18.6.2019.

Constitution of Pakistan, 1973--

----Art. 199--Control of Narcotic Substances Act, (XXV of 1997), Ss. 9(c), 34, 35 & 36--Control of Narcotic Substances (Government Analyst) Rules, 2001, R. 3--Constitutional petition--Conviction and sentence--Appeal--Benefit of Section 382-B, Cr.P.C--Partially--Allowed--Case was remanded back to trial Court--Direction to decide matter fresh--FSL laboratory was lacking of facilities--Ulterior motive--Requirements of report--Purposive interpretation of statute--Safe administration of Justice--Direction to--Under Section 36 of Act, report of Government Analyst, whilst being admissible in evidence without formal proof, is rebuttable and can be questioned, but Court is free to examine and assess whether it meets requirements of report under Act and Rules, even if report is not rebutted by accused--Report of Government Analyst must carry out information required in Rule-6 is to ensure that convictions under Act are based on reliable and credible report--Courts can apply purposive interpretation of statute to bridge gap between law and safe administration of criminal justice system based on prudence, caution, circumspection and judiciousness--Respondents-departments are directed to comply with provisions of Control of Narcotics Substances (Government Analysts) Rules, 2001, in letter and spirit--Depute/appoint eligible and competent persons in view of rule-3 of ibid rules having prescribed qualification and experience and equipped certified/notified Testing Laboratories in accordance with standard/requirements of test/analysis as prescribed in Act/Rules for safe administration of justice--Petition was allowed.

[Pp. 22 & 23] B, D & E

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

----S. 36(1)-- Control of Narcotic Substances (Government Analyst) Rules, 2001, R. 6--Mandat of rules, necessary protocol--Section 36(1) of Act read with rule-6 of Rules, 2001, mandates that report must be in prescribed form and a complete mechanism is to be adopted by Chemical Examiner upon receipt of samples and a report is then to be submitted by him referring to necessary protocols, and mentioning tests applied, in quadruplicate in “the prescribed form” and if report prepared by him is not prepared in same manner, then it may not be qualify to be called a report in context of Section 36 of Control of Narcotic Substances Act, 1997, so as to be treated as a conclusive proof of recovery of narcotics substance from an accused person. [P. 18] A

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

----S. 510--Control of Narcotics Substances Act, (XXV of 1997), Ss. 36 & 76--Results of chemical examiner--Although under Section 510 Cr.P.C. reports/results of Chemical Examiner and Assistant Chemical Examiner to Government, appointed are made admissible, but being Narcotics Law, enacted as a Special Law, provisions of said Act have been given overriding affect under Section 76, and under Section 36 of Act, 1997, Government Analyst has been mentioned. [P. 23] C

Mr. Noor Alam Khan, Adovcate for Petitioners.

Mr. Manzoor Khan Khalid and Walayat Khan, AAG for State.

Date of hearing: 18.6.2019.

Judgment

Waqar Ahmad Seth, C.J.--Through the instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner prayed that on acceptance of this writ petition, this Hon’ble Court may kindly issue:--

a. Declaration to the effect that “Control of Narcotics Substances (Government Analysts) Rules, 2001” are mandatory in nature.

b. Declaration to the effect that the laboratories functioning in the Khyber Pakhtunkhwa does not fulfill the minimum requirements of the law, hence, are illegal, without jurisdiction and without lawful authority.

c. Declaration to the effect that Forensic Science Laboratory report conducted by chemical examiner who by himself does not fulfill the minimum required qualification of Rule 3 of the “Control of Narcotics Substances (Government Analysts) Rules, 2001” is illegal, without jurisdiction and without lawful authority.

d. Direction to the effect that the Government analyst or chemical examiner may be appointed according to the required qualification prescribed in the Rule 03 of the “Control of Narcotic Substance (Government Analysts) Rules, 2001”, strictly in accordance with the law.

e. Direction to the effect that the Government analyst or chemical examiner appointed in violation of Rule 03 of the “Control of Narcotic Substance (Government Analysts) Rules, 2001” or having less experience required by the law may be terminated, forthwith in express contraventions of law is illegal, ab-initio and he cannot issue chemical analysis report at all and there is strong likelihood to effect the safe administration of justice and achieve objectives of the Control of Narcotics Substances Act, 1997 and further he is required to be suspended forthwith.

f. Any other order deemed appropriate in the circumstances of the case may also be passed. The petitioner may be allowed to put forward any other argument/document at the time of hearing of this writ petition.

1. In essence the grievance of the petitioner Aman-ul-Haq son of Muhammad Ullah r/o Mohallah Haji Abad, Sheikhan, Peshawar are that he was charged in case registered vide FIR 197 dated 02.03.2009 under Section 9-C, Control of Narcotics Substances Act, 1997 of Police Station Phandu, Peshawar. Thus was convicted by the learned Additional Sessions Judge V/Judge Special Court, Peshawar vide order dated 07.04.2016, and convicted and sentenced under Section 9-C, Control of Narcotics Substances Act, 1997 for four years rigorous imprisonment alongwith fine of Rs. 40,000/- OR in default of payment of fine to undergo further two months S.I. Benefit of Section 382-B, Cr.P.C was extended as well.

2. In the first round of the litigation, petitioner filed Criminal Appeal No. 194/2013 which was partially allowed/accepted vide order dated 13.06.2013, and the case was remanded back to the trial Court. Relevant abstract from the order dated 13.06.2013 is reproduced below:

“Accordrngly, for the reasons stated hereinabove, this Court partially allow the appeal, set aside the conviction and the sentence inflicted upon the petitioner and send the case back thereto for decision afresh after having fresh samples and getting them examine from chemical examiner duly appointed in term of Section 35 of the Act, read with Rule 3 of the Government Analyst Rules, 2001 in terms of the prescribed qualification.”

1. Arguments heard and record perused with the able assistance of learned counsel for the patties.

2. This writ petition is the outcome of judgment dated 13.6.2013, rendered in Criminal Appeal No. 194-P of 2013, whereby this Court while remanding the case to learned trial Court, had directed him to decide the matter fresh after having fresh samples and getting them examine from chemical examiner duly appointed in term of Section-35 of the Control of Narcotics Substances Act, 1997 read with Rule-3 of Government Analyst Rules, 2001. On receiving the case file, petitioner/appellant filed application for re-examination of the samples through any Laboratory/PCSIR, which was accepted and the samples were sent to the said laboratory for analysis/test and the result thereof, placed on instant petition dated 6.4.2015 is as under:--

| | | | --- | --- | | Sample Nos. | Heroin with other related alKaloids. | | Parcel Nos. 1 to 5, 7, 8, 10 to 12 and 15. | Not detected. | | Parcel No. 6. | 7% | | Parcel No. 9. | 10% | | Parcel No. 13 | 11% | | Parcel No. 14 | 02% |

1. Basing the said result, the learned trial Court, convicted and sentenced the petitioner to four years, which has been challenged in criminal appeal before this Court, but the assertion so made in earlier criminal appeal to the effect that whether the person who prepared, verified, signed and conducted the test in regard to purportedly recovered narcotics substance was a competent person with regard to his qualification as prescribed under Section 35 of the Act read with Rule-3 of the Government Analyst Rules, 2001, is a question before this Court coupled with other mandatory provision of Act/Rules. The prayers so quoted above, also manifest the earlier assertion. The report of FSL Ex.PW-2/4 dated 4.3.2009 would depict that P1 to 15, all the samples were Heroin, whereas according to PCSIR report, aforementioned, the same suggest, something otherwise.

2. Petitioner through the petition is alleging declaration to the effect that Section 35 of the Control of Narcotics Substances Act, 1997 coupled with Control of Narcotics Substance (Government Analysts) Rules, 2001 are mandatory in nature in such like cases. Section-35 of Act & Rule-3 of the ibid Rules, 2001 deals the matter which reads as under:

“The Federal Government or a Provincial Government may, by notification in the official Gazette, appoint such persons as it thinks fit, having the prescribed qualification to be Federal Government, Analysts or, as the case may be Provincial Government Analysts, for such area and in respect of such narcotics drugs, psychotropic substances or controlled substance as may be specified in the notification.

“Qualification of Government Analyst. (1) A Government Analyst shall be a person who has a degree in pharmacy or pharmaceutical Chemistry or Medicine from a recognized University or of any other institution recognised by the Federal Government for this purpose and has not less than three years postgraduate experience in the test and analysis of drugs.”

1. Keeping in view the above, section/rule of law, efficient, credible and proficient persons having the requisite qualification in the field are required for successful execution of the Act/Rules, as on the said reports, conviction/acquittal are based. In the instant petition, two different reports/results analysis have been furnished by two different laboratories, one of them would definitely be true/correct, and on tentative assessment of the said reports, the later dated 6.4.2015, seems genuine, as the same is based on the methodology, prescribed. The earlier report of FSL dated 4.3.2009 on the face of record suggests that either the laboratory i.e. FSL is lacking the facilities or the persons appointed therein have been selected otherwise or the report/results analysis are based on ulterior motives. This Court Had called the comments of respondents wherein respondents i.e. PCSIR had filed their comments, but official of FSL or for that matter the prosecution has not filed their comments to observe their stance and competency of their examiner, submitting their reports in narcotics cases, however, this Court in Criminal Appeal No. 194-P/2013 decided on 13.6.2013, had summoned the concerned purportedly appointed as Government Analyst to know his competency in regard to his qualification and this Court had observed his incompetency, irrespective of the fact that whether he was Government Analyst, Chemical Examiner or Assistant Chemical Examiner. The Provincial Government in pursuance of provision contained in sub-section (2) of Section 34 of the Control of Narcotic Substances, Act, 1997 through Notification No. SO (P-1) H1/3-2/97 dated 09.06.2001, for all intent and purposes of the Act, had declared the Forensic Laboratory of Police Department at Peshawar, to be the Provincial Narcotics Testing Laboratory with effect from 11.07.1997, and notified Government Analyst under Section 35 of the Act, in respect of narcotics and other psychotropic substances, but the qualification under Rule-3 of Control of Narcotics Substances (Government Analyst)-Rules, 2001, of a Government Analyst, altogether, coupled with reports/results-analysis under Rule-6 of the ibid rules, are not being submitting with full protocols of the test applied, as in each and every narcotics case, stereotype, proforma results are being submitted.

9. Section 36(1) of the Act read with Rule-6 of the Rules, 2001, mandates that report must be in the prescribed form and a complete mechanism is to be adopted by the Chemical Examiner upon receipt of samples and a report is then to be submitted by him referring to the necessary protocols, and mentioning the tests applied, in quadruplicate in “the prescribed form” and if the report prepared by him is not prepared in the same manner, then it may not be qualify to be called a report in the context of Section 36 of the Control of Narcotic Substances Act, 1997, so as to be treated as a conclusive proof of recovery of narcotics substance from an accused person. The apex Court in judgment reported as 2018 SCMR 2039 has dilated upon similar issue in the manner as under:

Directory’ and ‘mandatory’ provisions in a statute--Distinction--To distinguish where the direction of the legislature were imperative and where they were directory, the real question was whether a thing had been ordered by the legislature to be done and what was the consequence, if it was not done--Some rules were vital and went to the root of the matter, they could not be broken; others were only directory and a breach of them could be overlooked provided there was substantial compliance--Duty of the Court was to try to unravel the real intention of the legislature--Such exercise entailed carefully attending to the scheme of the Act and then highlighting the provisions that actually embodied the real purpose and object of the Act--Provision in a statute was mandatory if the omission to follow it rendered the proceedings to which it related illegal and void, while a provision was directory if its observance was not necessary to the validity of the proceedings--Some parts of a statute, thus, may be mandatory whilst others may be directory--Furthermore certain portion of a provision, obligating something to be done, may be mandatory in nature whilst another part of the same provision, may be directory, owing to the guiding legislative intent behind it--Even part of a single provision or rule may be mandatory or directory--In another context, whether a statute or rule be termed mandatory or directory would depend upon larger public interest, nicely balanced with the precious right of the common man.

Rr. 5 & 6--Control of Narcotic Substances Act (XXV of 1997), S. 9--Possession of narcotics--Report of Government Analyst--Safe custody and transmission of samples of the alleged drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory--Chain of custody began with the recovery of the seized drug by the police and included the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Lahoratnry--Said chain of custody, was pivotal, as the entire construct of the Control of Narcotic Substances Act, 1997 and the Control of Narcotic Substances (Government Analysts) Rules, 2001 rested on the report of the Government analyst, which in turn rested on the process of sampling and its safe and secure custody and transmission to the laboratory--Representative samples of the alleged drug must be in safe custody and undergo safe transmission from the stage of recovery till it is received at the Narcotics Testing Laboratory--Prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure--Any break in the chain of custody or lapse in the control of possession of the sample, would cast doubts on the safe custody and safe transmission of the sample(s) and would Impair and vitiate the conclusiveness and reliability of the report of the Government Analyst, thus, rendering it incapable of sustaining conviction.

R. 3--Control of Narcotic Substances Act (XXV of 1997), S. 9--Possession of narcotic--Narcotic Testing Laboratories--Qualification of Government Analyst--Supreme Court directed that the Federal Government and the respective Provincial Governments shall ensure that the Government analysts in the Narcotics Testing Laboratories were qualified as per R. 3 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 (‘the Rules’); that the tests and their protocols were common across the country and as per International guidelines; that the officials of the National and Provincial Narcotics Testing Laboratories shall follow the Rules in the best manner possible so that efficient and meaningful chemical analysis could be achieved, and that in case of failure, disciplinary action shall be taken ngainst the officials, in accordance with law.

Rr, 5 & 6--Control of Narcotic Substances Act (XXV of 1997), S. 9--Possession of narcotics- Report of Government Analyst--Rule 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 was directory while R. 6 was mandatory to the extent that the full protocols ought to be mentioned in the report of the Government Analyst-- Non-compliance of R, 6, in such context, would render the report of the Government Analyst inconclusive and unreliable.

In another case reported as 2015 SCMR 1002 titled Ikramullah and others versus The State, the apex Court had held as under:

Ss. 9(c) & 36--Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6--Recovery of narcotic substance--Reappraisal of evidence--Chemical Examiner Report--Safe custody of narcotics--Proof--Accused persons were convicted and sentenced to imprisonment for life alleging recovery of 48 packets of Chars from their vehicle--Validity--Entire page which was to refer to relevant protocols and tests was not only substantially kept blank but the same had also been scored off by crossing it from top to bottom--Such was a complete failure of compliance of relevant Rule and such failure reacted against reliability of report produced by prosecution before Trial Court--Provisions of S. 36 of Control of Narcotic Substances Act, 1997, required a government Analyst to whom a sample of recovered substance was sent for examination to deliver to the person submitting the sample a signed report in quadruplicate in “the prescribed form”--If report prepared by government analyst was not prepared in the prescribed manner then it could not qualify to be called a report in the context of S. 36 of Control of Narcotic Substances Act, 1997, so as to be treated as “conclusive” proof of recovery of narcotic substance from accused person----Investigating Officer appearing before Trial Court had failed to even mention name of police official who had taken the samples to office of Chemical Examiner--No such police official was produced before Trial Court to depose about safe custody of samples entrusted to him for being deposited in office of Chemical Examiner--Prosecution was not able to establish that after alleged recovery of substance so recovered was either kept in safe custody or that samples were taken from recovered substance had safely been transmitted to office of Chemical Examiner without the same being tampered with or replaced while in transit-- Prosecution failed to prove its case against accused persons beyond reasonable doubt---Supreme Court set aside conviction and sentence awarded to accused persons and they were acquitted of the charge---Appeal was allowed.

10. In the above quoted judgments, the apex Court had time and again emphasis and held that transmission in safe custody of the recovered narcotics to Testing Laboratory and compliance of provision of Act/Rules are mandatory in nature in respect of selection of Government Analyst and their results/analysis as per Section 36 (1) & Rule 6 qua the results/analysis in the manner i, e, i) all the tests and analysis of the alleged drug; ii) the result of the each test(s) carried out alongwith the consolidated result and; iii) and the name of all the protocols applied, to carry out these tests. Keeping in view the law on the subject and judgments of apex Court, the provisions of the statute is/are to be complied with in letter and spirit, without any fail and in case of failure, disciplinary action purportedly is to be taken in accordance with law. It is also important to underline that the Government Analyst while giving the details of tests/analysis, the results for each test and the test protocols applied in the report, must remember that under Section 36 of the Act, the report of the Government Analyst, whilst being admissible in evidence without formal proof, is rebuttable and can be questioned, but the Court is free to examine and assess whether it meets the requirements of the report under the Act and the Rules, even if the report is not rebutted by the accused. The concept of testing under the Act, the establishment of the testing laboratories, test and analysis and the report of the Government Analyst are premised on the assumption that the Government Analyst possesses the prescribed qualification provided under Section 35 of the Act read with Rule 3 of the rules, quoted above, and any deviation therefrom would affect the interest of public at large, not sustainable in the eye of law. On scrutiny none of the mandatory provisions either the process of recruitment in the prescribed criteria or for that matter, the test/report criteria, are being complied with.

1. Learned counsel for the petitioner is of the view that Assistant Chemical Examiner is incompetent and unauthorized to conduct, verify and sign the report, while learned AAG states that under Section 510, Cr.PC, the report prepared by Assistant Chemical Examiner, presumed to be prepared, verified and authenticated by a competent person, had been made admissible in evidence, but this Court is of the opinion that although under Section 510, Cr.P.C. reports/results of Chemical Examiner and Assistant Chemical Examiner to Government, appointed are made admissible, but being Narcotics Law, enacted as a Special Law, provisions of the said Act have been given overriding affect under Section 76, and under Section 36 of the Act, 1997, the Government Analyst has been mentioned. Sub-section 2 of Section 36 reads as “Notwithstanding anything contained in any other law for the time being in force any document purporting to be a report signed by a Government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall, unless rebutted be conclusive, meaning thereby that in each and every case of Narcotic samples is/are to be sent to such person, defined under Section 35 read with Rule-3 of Rules, 2001. The emphasis that the report of the Government Analyst must carry out the information required in Rule-6 is to ensure that convictions under the Act are based on reliable and credible report. Courts can apply purposive interpretation of the statute to bridge the gap between the law and the safe administration of criminal justice system based on prudence, caution, circumspection and judiciousness. We cannot deny that the aim of interpretation in law is to realize the purpose of the law, the aim in interpreting a legal text is to realize the purpose the ext serves. Law is, thus, a tool designed to realize a social goal. It is intended to ensure that social life of the community, on the one hand, and human rights, equality, and justice on the other hand.

12. For the reasons recorded hereinabove, this writ petition is allowed in the manner that respondents-departments are directed to comply with the provisions of Control of Narcotics Substances (Government Analysts) Rules, 2001, in letter and spirit. Depute/appoint eligible and competent persons in view of Rule-3 of the ibid rules having the prescribed qualification and experience and equipped the certified/notified Testing Laboratories in accordance with the standard/the requirements of test/analysis as prescribed in the Act/Rules for safe administration of Justice. The Additional Registrar (Judicial) of this Court is directed to communicate copy of this judgment to respondents-Provincial Government for compliance and necessary action, immediately.

(Y.A.) Petition allowed

PLJ 2020 Peshawar 24

Present:Syed Arshad Ali, J.

MOHABAT SHAH and 6 others--Appellants

versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 16 others--Respondents

R.F.A. No. 87-M of 2017, decided on 13.3.2019.