PLJ 2021 Judgments

PLJ 2021 Karachi 1 (DB)

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

MUHAMMAD SALEEM SHAIKH and others--Petitioners

versus

PROVINCE OF SINDH and others--Respondents

C.P. Nos. D-228 of 2004, 2157 of 2008, 2576, 2353, 2354, 2355, 2356 of 2009, 2596, 2559, 218 of 2010, 104, 2963 of 2011, 104, 4429 of 2012, 2252, 2473 of 2014, 797 of 2018, decided on 13.2.2020.

Constitution of Pakistan, 1973--

----Art. 199--National Accountability Ordinance, 1999, Ss. 18 & 24--Declaration of result--Competitive process--Manipulation of result--Alteration of marks--Appointment of beneficiaries--Denial of right of appointment--Conducting of inquiry--Inquiry report--Fabricated result--Stretch of imagination--Filling of NAB reference--Anti-corruption inquiry--Doctrine of laches--Alteration of principle locus poenitentiae--Direction to--We have examined first inquiry report which unveiled blatant tampering and mess around record and data with clear intention of fraud and also smacks sham and dishonesty in whole examination process, so entire process was considered as deceptive with further observation that fabricated result has lost credibility and has been issued without any legitimate basis--In report of recast result SPSC recommended that result of Combined Competitive Examination 2003 has been tampered and manipulated which is beyond any stretch of imagination to accept basis or source of selection of suitable candidates who will run affairs of Government machinery for future at least year ending 2040--Commission also found that favored candidates were awarded high marks in interview; therefore, recommendations were made by Commission for fresh interview of candidates who were declared successful in recast result afresh--Respondents have taken a plea that petitions, are hit by doctrine of laches but it is also a ground reality that entire 2003 competitive process was considered sham and doubtful and as a result thereof an inquiry was conducted by SPSC--Inquiry report and recast results were also submitted in Court--Anti-Corruption department also conducted inquiry and case was registered and further NAB has also filed a reference against persons considered to be responsible for fraud and maneuvering in result process to benefit their blue-eyed persons--After such material produced on record, it would be in advancement of justice and dictates of justice also demand that some action should be taken rather than non-suiting petitioners on ground of laches when SPSC itself submitted inquiry report and also made recommendations in recast result--Government should have taken some action at relevant time when complaints were lodged against sham competitive process and members of SPSC themselves held that process was not transparent but it is very sorry state of affair that no action was taken to scrap entire competitive process at relevant time and to call upon candidates to appear in process afresh which was dire need to resolve issue and to maintain transparency, propriety and decorum which was essential for revamping and restoring confidence of general public in order to save sanctity and sacredness of SPSC as an institution of well repute--Respondents have also taken a plea of locus poenitentiae but it is well settled principle of law that award of some benefit to a person in violation of law would not attract principle of locus poenitentiae--When illegalities and wrongdoings came into knowledge of Govt. of Sindh, no High Powered Committee was constituted to examine and unearth illegalities committed by officials of SPSC in competitive examination process 2003 even counsel for respondents cast aspersion against inquiry report of SPSC with plea that they had no authority to inquire into matter even some of them also questioned recast result--An inquiry is also required to be conducted to ventilate and assuage anguish and distress of those who qualified competitive examination but by hook or by crook they were declared unsuccessful to favour and accommodate blue-eyed candidates, therefore, we are also of firm view that a High Powered Commission should be constituted to examine and scrutinize entire process, fix responsibility and propose proper action to competent authority to conclude matter at some logical end--Petitions were disposed of.

[Pp. 14, 15, 30, 31, 32, & 33] A, B, C, D, E, F & G

PLC 2011 (CS) 1130, AIR 1991 SC 101, 1997 (7) SCC 622 rel.2017 SCMR 637 and 2014 SCMR 949 ref.

Mr. Abid S. Zuberi, Advocate for Petitioner (in C.P. No. D-2355 of 2009 along with Petitioner and Mr. Zameer Hyder, Advocate).

Shaikh Altaf Ahmed, Advocate for Petitioner Nos. 13 & 14 (in C.P. No. D-2157 of 2008).

Petitioner Saleem Shaikh (in C.P. No. D-2157 of 2008), Petitioner Asif Ali (in C.P. No. D-2354 of 2009) and Petitioner Syed Nawaz Ali Shah present in person (in C.P. No. D-218 of 2010).

Intervenor Muneer Ahmed Sehar (in C.P. No. D-2157 of 2008).

Mr. Mushtaq A. Memon, Advocate for Respondent No. 5 (in C.P. No. D-2157 of 2008) along with M/s. Shahid Ansari, Asif Memon and Ishtiaq Memon, Advocates.

Mr. M.M. Aqil Awan, Advocate for Respondent Nos. 6 to 8, 13, 15, 16, 18, 22 to 25, 27, 31 to 37, 40 to 42, 44, 47, 48, 50 to 53, 55, 56, 58, 59, 62 to 64, 68, 77 & 79 (in C.P. No. D-228 of 2004) for Respondent Nos. 4, 7 to 18 (in C.P. No. D-2157 of 2008).

Along with M/s. M. Arshad Tanoli & Danish Rasheed, Advocates.

Mr. Bhajandas Tejwani, Advocate for Respondent No. 19 to 33 (in C.P. No. D-2157 of 2008 along with Ms. Nazia Siddiqui, Advocate).

Mr. Neel Keshav, Advocate for Petitioner Nos. 4 to 8 & 10 ( in C.P. No. D-2157 of 2008).

Syed Amir Ali Shah Jilani, Advocate for Petitioner No. 14 (in C.P. No. D-2157 of 2008).

Mr. Abdul Salam Memon, Advocate for Petitioners (in C.P. Nos. D-2157 of 2008, 104 of 2011, 2963 of 2011, 104 of 2012 and 4429 of 2012).

Along with Mr. Amanullah & Ms. Rabia Javed, Advocates.

Mr. Hyder Bux Shar, Advocate for Petitioners (in C.P. Nos. D-2596 of 2010 & 2354/2009 & for Applicants/Interveners in C.P. Nos. D-2157 of 2008).

Mr. Ali Ahmed Kurd, Advocate for Petitioners (in C.P. No. D-2353 of 2009).

Mr. Basil Nabi Malik, Advocate for Petitioners (in C.P. Nos. D-2473 of 2014 & 2252 of 2014).

Mr. Kazim Abbasi, Advocate for Petitioner (in C.P. No. D-797 of 2018).

Mr. Ahmed Pirzada, Advocate and Mr. Niaz Muhammad Ghumro, Advocate for Petitioner (in C.P. No. D-2559 of 2010).

Mr. Asadullah Magsi, Advocate for Intervenors (in C.P. No. D-2157 of 2008).

Mr. Mukhtiar Hussain Kazi, Advocate for Intervenor Sultan Qureshi (in C.P. No. D-2157 of 2008).

Mr. Abdul Majeed Khoso, Advocate for Intervener (CMA No. 8114 of 2016) in C.P. No. D-2157 of 2008.

Mr. Muhammad Junaid Farooqi, Advocate for Intervener (M. Muslim Shaikh) in C.P. No. D-2157 of 2008.

Intervenor Aziz Ahmed Chandio present in person (in C.P. No. D-2157 of 2008).

Mr. Ahmed Pirzada, Advocate for Intervener Abdul Hakeem (in C.P No. D-2157 of 2008).

Malik Naeem Iqbal, Advocate for the Respondent No. 6 & Applicant/Intervenor along with Malik Altaf Javed, M/s. Faizan H. Memon & M. Saleem Khaskheli, Advocates.

Mr. Saleem Akhtar (in C.P No. D-2157 of 2008), for Respondent No. 3 in C.P. No. D-2252 of 2014 and for Respondent No. 6 in C.P. No. D-228 of 2004.

M/s. Farhatullah and Talat Hussain Shah, Advocates for Respondent No. 4 (in C.P. No. D-2157 of 2008).

Mr. Khalid Javed, Advocate for Respondent No. 15 (in C.P. No. D-2157 of 2008) along with M/s. Munawar Juna, Yousuf & Ms. Farkhanda Shaheen, Advocates.

Mr. G.M. Bhutto, Advocate for Respondent Nos. 3, 5 & 6 (in C.P. No. D-2157 of 2008).

Mr. Suhail H.K. Rana, Advocate holding brief for Mr. Shahnawaz M. Sahito, Advocate for Intervenor Muhammad Ali Unar in C.P. No. D-2157/2008).

Intervenor Amanullah present in person in C.P. No. D-2157 of 2008.

Mr. Muhammad Yousuf Alvi, Law Officer, SPSC.

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

Mr. Sibtain Mehmood, A.A.G and Mr. Jawad Dero, Addl. A.G. along with Mr. DM-Imran Khan (internee).

Mr. Yousuf Alvi, Law Officer Sindh Public Service Commission.

Mr. Saeed Ahmed Shaikh, Deputy Secretary (Services) SGA&CD, Government of Sindh.

Dates of hearing: 15.4.2019 & 19.8.2019.

Order

Muhammad Ali Mazhar, J.--The aforesaid Constitution Petitions have been filed to challenge the result of Combined Competitive Examination 2003. The result was declared and published on 10.04.2004 in print media and successful candidates were called upon to appear in viva voce. According to the petitioners, some serious irregularities and illegalities were committed in the examination and due the sheer favoritism, blue-eyed candidates were declared successful and many successful candidates were declared failed.

1. The composite momentary facts are as follows:

An advertisement was published by Sindh Public Service Commission in the newspapers dated 27.07.2003 for inviting applications to the posts of BPS-16 and 17 through combined competitive examination. The petitioners applied to join the process and appeared in the written test scheduled from 31.12.2003 to 12.01.2004. Total 2555 candidates appeared in the examination out of which 531 candidates were declared successful. The result was declared and published on 10.04.2004 in print media and successful candidates were called upon to appear in viva voce. The final result was announced on 27.06.2004 by which 77 candidates were declared successful and recommendations were sent to Respondent No. 1 (Government of Sindh). It is significant to note that Sindh Public Service Commission was silent with regard to the marks obtained by each candidate. Due to hectic efforts the petitioner, Salim Shaikh got the marks certificate on 02.08.2004 after the lapse of two and half months which disclosed that he got 726 marks out of 1150 marks so he should have been declared successful but due to serious fraud and tampering with the record of Sindh Public Service Commission, his name was not included in the successful candidates. He obtained 201 marks in viva voce test out of 250 marks. Somehow or the other, the similar grievances have been brought forward by some other petitioners too who have also alleged serious fraud and tempering in the record and result to favor and give preferentiality to the blue-eyed. In C.P.No. D-2157/2018, SPSC filed the comments and made a request to allow time to scrutinize the result. They expressly admitted that the result of many candidates were manipulated and tampered intentionally. The candidates who failed in one or more subjects were shown qualified and their roll numbers were included in the final result/press release. An enquiry report of the committee, constituted under the direction of chairman, SPSC on combined competitive examination was also submitted. Another inquiry was conducted by Anti-Corruption Establishment based on the FIR No. GO-08/2009 of ACE Hyderabad, lodged against Muhammad Umar Zaur, the then Controller of Combined Competitive Examination of SPSC and others. According to the reports, massive tampering took place and the Controller of Exam was involved in the forgery and alteration in the answer sheets and result 2003-2004. A recast result was submitted vide statement dated 14.01.2015 in C.P.No. D-2355/2009 which shows that all available answer copies of candidates have been rechecked in order to remove discrepancies. The report shown some interpolation in the mark sheets as well as in the final result, therefore the members recommended for fresh interviews.

1. The minutiae of the bunch of petitions do show that various petitioners as an individual or in league challenged the above competitive process and also arrayed various private and official respondents. Virtually, in all these petitions the Combined Competitive Examination 2003 is under challenge. During pendency of these petitions, many miscellaneous applications have been filed under Order 1 Rule 10 CPC for and against by various persons for impleading them proper and necessary parties. The net calculation of such applications available on record is 41. Two applications were dismissed for non-prosecution but the applicants filed their applications for restoration. The rudiments of CMAs are as follows:--

(1) CMA No. 11973/2009 filed by Saeed Ahmed Bhutto for impleading as Petitioner. (Allowed on 3.11.2010)

(2) CMA No. 10251/2009 filed by Ms.Mamona Shah for impleading her as Respondent. (Allowed on 3.11.2010)

(3) CMA No. 10157/2009 filed by Syed Khalid Muneer for impleading as petitioner. (Dismissed on 30.08.2010)

(4) CMA No. 10009/2009 filed by Aamir Zia for impleading as Respondent. (Allowed on 3.11.2010)

(5) CMA No. 10156/2009 filed by Shoaid Ahmed Kerio for impleading as Respondent. (Allowed on 3.11.2010)

(6) CMA No. 10252/2009 filed by Ahyan Mustafa Bhutto for impleading as Respondent. (Allowed on 3.11.2010)

(7) CMA No. 11404/2009 filed by Nasir Mehmood & 05 others for impleading as petitioners. (Allowed on 3.11.2010)

(8) CMA No. 4115/2010 filed by Azizullah Chandio & another for impleading as petitioners. (Allowed on 3.11.2010)

(9) CMA No. 9779/2010 filed by Ibrahim Memon & 11 others for impleading as Respondents. (Allowed on 3.11.2010)

(10) CMA No. 574/2011 filed by Iftikhar Ali for impleading as petitioner (Not listed).

(11) CMA No. 1692/2011 filed by Riaz Ahmed Dahar & 14 others for impleading as Respondents. (Allowed on 07.04.2011)

(12) CMA No. 2991/2011 filed by Abdul Rehman Khawaja for impleading as petitioner. (Allowed on 07.04.2011)

(13) CMA No. 20684/2013 filed by Zameer Ahmed for impleading as petitioner (Allowed on 18.07.2013) (He has also filed Statement for withdrawal of application)

(14) CMA No. 20824/2013 filed by Imdad Hussain Siddiqui for impleading as petitioner. (Allowed on 18.07.2013)

(15) CMA No. 20826/2013 filed by Imdad Ali Patoojo for impleading as petitioner. (Allowed on 18.07.2013)

(16) CMA No. 22085/2013 filed by Muhammad Asif & 07 others for impleading as petitioners.

(17) CMA No. 33023/2013 filed by Abdullah Hanjrah for impleading as petitioner.

(18) CMA No. 537/2015 filed by Asadullah for impleading as petitioner

(19) CMA No. 33022/2013 filed by Abdul Hakeem for impleading as petitioner.

(20) CMA No. 2636/2014 filed by Saleem Akhter for impleading as petitioner.

(21) CMA No. 3503/2014 filed by Ghulam Mohiuddin for impleading as petitioner.

(22) CMA No. 33443/2014 filed by Muhammad Ali Unar for impleading as petitioner.

(23) CMA No. 34281/2014 filed by Awais Ahmed Talpur for impleading as petitioner.

(24) CMA No. 3190/2015 filed by Salahuddin for impleading as petitioner

(25) CMA No. 30200/2015 filed by Muhammad Rizwan for impleading as petitioner.

(26) CM A No. 35248/2015 filed by Abdul Sattar Malik for impleading as petitioner.

(27) CMA No. 2476/2016 filed by Ghulam Ali for impleading as petitioner.

(28) CMA No. 8071/2016 filed by Muhammad Amin for impleading as petitioner.

(29) CMA No. 8114/2016 filed by Abdul Sattar Malik for impleading as petitioner.

(30) CMA No. 6379/2017 filed by Zeeshan Ahmed Phulpoto for impleading as petitioner.

(31) CMA No. 5768/2017 filed by Aurangzeb Mughal for impleading as petitioner.

(32) CMA No. 6706/2017 filed by Muneer Ahmed Seehar for impleading as petitioner.

(33) CMA No. 23165/2017 filed by Abdul Hafeez & Ghulam Abbas for impleading as petitioners.

(34) CMA No. 25202/2017 filed by Muhammad Muslim Shaikh for impleading as petitioner

(35) CMA No. 17123/2018 filed by Sultan Qureshi for impleading as petitioner

(36) CMA No. 36936/2018 filed by Sarfraz Ahmed Lakho for impleading as petitioner.

(37) CMA No. 27219/2013 filed by Faqir Muhammad for impleading as petitioner in CP.No. D-2354/2009

(38) MA No. 481/2006 filed by petitioner to implead Ghulam Murtuza as respondent in CP.No. D-228/2004

(39) MA No. 608/2009 filed by petitioner to implead Muhammad Nawaz Soho as respondent in CP.No. D-228/2004

(40) CMA No. 4876/2010 for restoration of Order 1 Rule 10 CPC application filed by Shabbir Ahmed Awan

(41) CMA No. 7565/2011 For restoration of Order 1 Rule 10 CPC application filed by Syed Khalid Munir.

1. The multifactorial upshot of arguments move forward by the learned counsel for the petitioners and the petitioner Salim Shaikh in person is that in the competitive examinations conducted by the Sindh Public Service Commission/Respondent No. 4, the results were manipulated to favour some candidates and deprived the petitioners from selection on merits. The candidates who had passed the examination were shown to have failed and candidates who failed were shown to have passed the examination, therefore the appointments made on the forged examination results be declared null and void. The learned counsel referred to the Enquiry Report dated 25.7.2009 submitted by SPSC with the comments filed in C.P. No. D-2157/2008 and also admitted the manipulation in the result. The gist of the inquiry report explicates that after carrying out physical scrutiny of each and every answer sheet of all subjects of 75 candidates, the committee observed that almost 57% of the result of the combined competitive examination, 2003 was tempered. It was further stated that colossal and capricious tampering has been made in the paper of History of Sindhi Literature and the marks of 13 selected candidates were altered which upset the merit. The committee concluded that out of 77 selected candidates, after scrutinizing each and every copy of answer sheets of 75 candidates, the tampering with mark sheets, face sheets and result sheets in case of 47 candidates was found which almost 57% of the final result. The large scale tampering was done intentionally and deliberately. The learned counsel also relied on paragraph 33 of the report and argued that based on the above report, FIR No. GO-08/2009 was lodged against the culprits and an Enquiry report was compiled by the Anti-Corruption Department.

2. It was further averred that the beneficiaries were appointed in violation of merit and the petitioners and other qualified individuals were denied their right to be appointed on merits They relied on the judgment of Apex Court (2014 SCMR 949) rendered in the case of illegal appointments in EOBI whereby an internal fact finding committee was formed which submitted its report highlighting illegal appointments. The Court held that unanimous report speaks volumes about the mismanagement, corruption, nepotism and politicizing of the disputed appointments in a mala fide manner, thereby crushed the merit criteria in a public owned establishment of the Government. It was further held by the apex Court that if petitions are allowed substantial hardship is likely to be caused to many of the appointees who will lose their jobs because of the illegalities in their respective appointments committed by EOBI, but the fact remains that such ill-gotten gains cannot be protected under any cannon of law or even on humanitarian considerations, such gains availed by the illegal appointees were at the cost of other deserving candidates who had applied for these posts with a legitimate expectation that they would be able to seek appointment on the basis of their eligibility-cum- merit criteria. Moreover, the hon’ble Supreme Court in another case reported in 2017 SCMR 637 found that the SPSC had committed large-scale illegalities in conducting the examinations of 2013 and held that the results of ‘ the said test were not free, fair or transparent and therefore set aside the result. The illegal appointees filed a review against the said decision, which was dismissed and order in review is reported in 2017 SCMR 1519. In the said review application, the appointees took the stance that a vested right accrued in their favour, they should not to be penalized for the wrong doings of the SPSC and by virtue of the de facto doctrine their appointments are protected. However, such stances were rejected by the Supreme Court and the Court held that “The question before this Court is not whether one or the other set of candidates had resorted to unfair means and illegal acts in order to gain employment, the real question relates to fairness, integrity and transparency of the process and procedure adopted by the Chairman and Members of the Commission to undertake the selection process. This Court has found serious flaws in the process of selection which point towards lack of transparency to facilitate nepotism and favoritism that cannot be condoned or countenanced. We are not persuaded by the argument of the learned counsel that the de fecto doctrine is attracted to the facts and circumstances of this case, which suggest that the very appointments of the Chairman and Members of the Commission suffered from serious defects and flaws. However, the matter did not end there. The process and procedure adopted by the then Chairman and Members for undertaking the exercise of selection was replete with illegalities, departure from recognized norms and deviation from the law, rules and procedure which we have found hard to overlook or sidestep.”

3. It was further contended that the apex Court held in 2006 SCMR 1876 that individuals so selected are to be paid not out of the private pockets of the ones appointing them but by the people through the public exchequer, therefore not selecting the best as public servants was a gross breach of the public trust and was an offence against the public who had right to be served by the best. It was further averred that it is a settled principle of law that no person can claim a right obtained in violation of law. [PLD 2013 S.C. 829; 2011 SCMR 408] Similarly if the order is illegal, perpetual rights cannot be created [2000 SCMR 907]. The hon’ble Supreme Court in the past in particular with regards to the issue of police promotions in violation of law demoted such police officials despite them having rights. [2013 SCMR 1752; 2015 SCMR 456]. Hence, the beneficiaries of such fraudulent and manipulated exams are not entitled to retain their respective posts as no right has accrued in their favour. So far as plea of laches from other side, the learned counsel argued that plea of laches would not be applicable in case of recurring cause of action or if it defeats the ends of justice. The Supreme Court in its judgment reported in PLD 2013 SC 268 held that “No Court would dismiss a lis on the ground of laches if it defeats the cause of justice and thereby perpetuates an injustice. Even otherwise, bar of laches cannot be over emphasized in the cases where the relief claimed is based on recurring cause of action.” It may be noted that the petitioners filed petitions in this Court in relation to the fraud in the Combined Competitive Examinations, 2003. During the pendency of such proceedings, the Respondent No. 1 constituted a three members committee for purposes of investigating the Combined Competitive Examinations, 2003. There are three reports on record i.e. the inquiry report, the re-cast result and the inquiry report by Anti-Corruption that confirm widespread illegalities and tampering committed in the result.

4. The learned counsel for the private respondents in nutshell argued that the petitions suffer from laches and liable to be dismissed on this account alone. The process of Combined Competitive Examination was started by publication in newspaper on 27.07.2003, the final result was announced on 27.06.2004 and the successful candidates were appointed and posted in 2004. The functions of the Sindh Public Service Commission cannot be challenged by filing of writ petitions. The petitioners have other alternate adequate remedies available to them under the SPSC laws which they have failed to avail. The petitions are also barred in view of the Sindh Public Service Commission Act and the rules and regulations framed thereunder. The new management of SPSC submitted para wise comments against the petition of Saleem Shaikh and in this Constitutional Petition partly admitted the allegations of illegalities/tampering leveled by Saleem Shaikh against the result of Combined Competitive Examination 2003; while it had earlier denied the allegations of tampering/illegalities in 2003 Combined Competitive Examination in CP No. D-228/2004 filed by Nabi Bux Sathio. The partly admission of new management of SPSC in the instant CP is based on mala fide intention. The SPSC Enquiry Report is sheer violation of principle of natural justice inasmuch as the successful candidates were never provided any opportunity of hearing by the new management of SPSC before recommending adverse action against the successful candidates. The SPSC did not enquire examiners who were related to alleged tampering. They only conducted so called enquiry in favour of petitioners to show their so called performance before superior and creating pretext for recasting the result. Moreover, the Committee was constituted without any mandate of law and composed of such members having no specialty in relevant subjects who unlawfully attempted to re-check, reassess and re-examine the answer copies which were already assessed by subject specialists. The recast result was prepared after conducting enquiry team of five members but it was not signed by all members which rise to strong presumption that other four members did not agree with such report. The selection of private respondents was given effect by the Government of Sindh, therefore, even Government of Sindh is not competent to undo it. The notification of appointments cannot be withdrawn or rescinded after taking legal effect and acted upon. The reliance was placed on the doctrine of locus poenitentiae and referred to the case of Chief Secretary Government of Sindh vs. Sher Muhammad Makhdoom (PLD 1991 SC 973). It was further contended that the suo motu case reported in 2017 SCMR 637 is not applicable in the instant case as suo motu action was initiated by the Supreme Court regarding eligibility of Chairman and Members of Sindh Public Service Commission which was allowed by Supreme Court and appointment of Chairman and Members were held to be unlawful as they were lacking the required eligibility and qualification and the examination conducted by them was also declared as illegal as sufficient record was placed before the supreme Court for adjudication of large scale illegalities and discrepancies committed by the Chairman and its Members while in this case, the eligibility of commission is not under challenge.

5. It was further contended that the petition is hit by doctrine of laches. No legal right has been agitated by petitioner to enforce, particularly after lapse of considerable period. The new management of SPSC partly admitted the allegations of illegalities and tampering in the result of Combined Competitive Examination, 2003, while it had earlier denied the same allegations. Under the SPSC Act and its rules, the role of SPSC is to conduct test and examination, whereas SPSC initiated enquiry in Combined Competitive Examination, 2003 on its own. The inquiry reports were prepared in violation of principle of natural justice. Some of the private respondents on gaining knowledge of the petition approached for impleading them as party which were allowed but still large number of candidates declared successful are not before this Court nor they have been heard. No law authorizes SPSC to recheck, reassess and re-examine the result. Disputed question or factual controversy between SPSC Enquiry report and Recast result report cannot be resolved under constitutional jurisdiction.

6. The learned A.A.G argued that one Nabi Bux Sathio on 19.8.2004 filed C.P.No. D-228/2004 in the Sindh High Court at Circuit Bench Hyderabad against Respondent No. 1 and 2 for challenging the combined competitive examination 2003-04. The Respondent No. 2 in its parawise comments supported the successful candidates of combined competitive examination 2003. This petition has been tagged with C.P.No. D-2157/2008. On 26th May, 2008, S.N. Abbasi along with nine other members including Mr. Abrar Hussain Mirza, Mr. Nawaz Ali Leghari and Shah Mansoor Alam were appointed in the Sindh Public Service Commission. After the change of the management of SPSC Mr. Muhammad Saleem Shaikh on 18.10.2008 after lapse of more than four years filed C.P.No. D-2157/2008 although he was in possession of his marks sheet since 2.8.2004. The first para of recasting result states that for the purpose of re-casting result, all available answer copies of the candidates have been re-checked minutely in order to remove every discrepancy that was left over and manipulation and tampering made in previous assessment of answer copies. The task of re-checking of answer copies was entrusted to the members of the Sindh Public Service Commission. There is a difference in the number of Answer Books and nearly 1688 answer Books have been misplaced under the control of the Member Examination Mr. Abrar Hussain Mirza thus making the two reports of Respondent No. 2 contradictory. The learned A.A.G further argued that the petitions are hit by laches. No case of issuances of writ of mandamus is made out. The petitions do not fulfill the requirements of writ of Quo-Warranto. The enquiry report and recast report were prepared incompetently. He referred to 2004 SCMR 1299, 2014 PLS (CS) 1292, 2017 SCMR 369, 1999 SCMR 2405 and 2005 SCMR 445

10. Heard the arguments. To start with, we would like first to refer to an order dated 26.03.2010 passed by the learned Division Bench of this Court in the leading petition (C.P. No. D-2157/2008) which shows that the Respondent No. 2 (Sindh Public Service Commission) submitted their comments and also sought three months’ time for completing the detailed scrutiny of result of Combined Competitive Examination 2003. The learned Division Bench shown displeasure that comments were filed on 12.06.2009, neither detailed scrutiny report was compiled nor submitted in the Court. The learned A.A.G. requested for further two weeks’ time to make available the scrutiny report in Court. The order dated 30.08.2010 echoes that the learned A.A.G. produced a copy of inquiry report in respect of only 70 candidates, whereas the total number of candidates who appeared were more than 700 thenceforth this Court returned the report to the A.A.G. with the directions to bring it on the next date of hearing. The order dated 21.08.2013 displays the statement of the learned A.A.G. that pursuant to the directions of this Court, the inquiry was duly conducted and reports were submitted in the office. In the same sequence the order dated 27.05.2015 exhibits that A.A.G. was directed to place on record two inquiry reports and supply the copies of such reports to the petitioners as well as counsel for the respondents with the right to file objections. We have examined the first inquiry report which unveiled the blatant tampering and mess around the record and data with clear intention of fraud and also smacks sham and dishonesty in the whole examination process, so the entire process was considered as deceptive with further observation that the fabricated result has lost credibility and has been issued without any legitimate basis. For the ease of reference, the recommendations made in inquiry report are reproduced as under:

Recommendations in the Inquiry Report:-

“43. In view of the facts and position elucidated in the forgoing paragraphs and to meet the justice and transparency in selection of 77 candidates for various posts through the Combined Competitive Examination, 2003 it is proposed that:

i) The answer sheets of every candidate must be available in the record room of the (Examinations) branch until and unless accounted for any shortfall by the authorized person in whose custody such is kept. Removal or missing of answer sheets point towards manipulation in the record with ulterior motives. Such candidates must not be declared successful in the final list and should not be recommended for appointment. If recommendation has been done for such candidates, their candidature may be declared ineligible and their recommendation should be withdrawn.

ii) Each answer book must be signed by the actual examiner (where it is required mandatory) else the result of that candidate may be treated as null and void.

iii) The assessment made by the examiner if found tampered, the result on that answer sheet may be treated as null and void.

iv) Overwriting on the face sheet of a candidate is liable to cancellation of result.

v) Award of marks mentioned on the face sheet of answer sheet must correspond with the result sheet. The variation in marks shall render the marks as null and void.

vi) The candidates having less than passing marks in each subject and less than 50% in the aggregate are deemed to be declared fail.

vii) Original assessment should not be tampered failing which result of the selected candidates shall be treated as null and void.

viii) It has been established that the ex-Controller of Examinations Mr. Umar Zaur, Sindh Public Service Commission has played pivotal role while tempering/ manipulating with the result of the Combined Competitive Examination, 2003 beyond all stretch of imaginations against whom necessary action shall be taken under Removal from Services (Special Powers) Sindh Ordinance, 2000. However, in case of those who are equally involved in this heinous crime and fraudulent activities shall be dealt with according to relevant Rules/Act.

1. The above inquiry report clearly establishes the fact that blatant tampering of record and data has been done with clear intention of fraud and smacks of sham and dishonesty in the whole Examination process. As such the entire process should be seen as deceptive and total swindling done with ulterior motives. Such fabricated result has lost credibility and has been issued without any legitimate basis. It would be in the interest of justice and fair play that all subsequent actions that were taken as a result of this bogus process be declared null and void following the legal maxim, “fraud vitiates all subsequent transactions”.

11. Similarly, in the report of recast result the Sindh Public Service Commission recommended that the result of Combined Competitive Examination 2003 has been tampered and manipulated which is beyond any stretch of imagination to accept the basis or source of selection of suitable candidates who will run the affairs of Government machinery for future at least the year ending 2040. The Commission also found that the favored candidates were awarded high marks in the interview; therefore, the recommendations were made by the Commission for the fresh interview of the candidates who were declared successful in the recast result afresh. The relevant portions of recast result and the recommendations are reproduced as under:

Recommendations of SPSC on Recast Result.

“(i) The result of C.C.E. 2003 has been tampered and manipulated to such an extent that it is beyond any stretch of imagination to accept it as a basis for source of selection of suitable candidates who will run the affairs of Government administrative machinery for future at least the year ending 2040. Candidates who have entered in Government Service through favoritism shall not discharge public service efficiently and with honesty. The result should be cancelled forthwith.

(ii) This time, the exercise of recasting of the result of CCE, 2003 has not been left to Controller of Examination but it has been done by the Honourable Members. As a result of recasting of C.C.E. 2003, some candidates have qualified the written examination that were previously eliminated through tampering with their marks and were declared as failures. The Commission has also found that the favored candidates have been awarded high rating/marks in the interview, just to give them a lead in overall merit which is another fraud committed at later stage of the examination and is not acceptable. The Commission therefore recommends that fresh interview may be held of all candidates who been declared successful in the recast result afresh and combined final merit may be determined. The Commission should prepare recommendations to the Government for appointment in accordance with the policy already in force.

Sd./- Member Examination Sindh Public Service Commission”

1. The chronicle reflects that the same process was also under investigation by the Anti-Corruption Establishment and their inquiry revealed that approval was sought to prosecute the accused persons such as the then Controller of Examination Service Commission, the then Chairman SPSC, Additional Controller and In charge RC, SPSC, Assistant Controller SPSC and 51 candidates/beneficiaries. For the sake of convenience, the allegations mentioned in the Anti-Corruption Establishment inquiry are reproduced as under:

Investigation Report of Anti-Corruption Establishment

“According to the report of Chairman SPSC that the Sindh Public Service Commission held combined Competitive examination 2003 from 31-12-2003 to 12-01-2004 and result of written examination was announced on 10-04-2004 in which 521 candidates were declared successful. The viva-voce / interviews were held from 27-04-2004 to 02-06-2004 and final result was announced on 27-06-2004 in which 77 candidates were selected for various vacancies in the Sindh Government Departments.

On scrutinizing available answer sheets of the 77 candidates who were declared successful and recommended for appointment, it revealed that tampering with result started when assessment of answer books was in progress and when the answer sheets were being received from various examiners. The act of tampering with the result continued during the course of Viva-Voce examination and speaks volumes of manipulation of the result of the Combined Competitive Examination 2003, in which the then controller of Examination Mr. Umer Zaur played a leading role with the blessings of the then Chairman, Sindh Public Service Commission Mr. Muhammad Hassan Bhutto.

All copies of answer sheets of the candidates namely Mr. Ahyan Mustafa Bhutto Role No. 259/Merit No. 4 and Dr. Nisar Ahmed Leghari Roll No. 3664/Merit No. 71 are missing and removed intentionally.

It has been found that tampering with marks sheet, face sheet and result sheets in case of 47 candidates has been done, which is almost 57% of the selected candidates in the final result. This large scale tampering was made intentionally, deliberately to accommodate favored candidates related to ranking officers and others due to some money spinning consideration in following manner,--

(i) Final Result Sheet has been tampered favoring number of candidates, (ii) Face Sheets are without the signature of Examiners.

(iii) Few copies of certain subjects/papers of the candidates are missing and have created doubts that these candidates in fact have failed in such papers and their results have been manipulated by removing their answer sheets.

(iv) Award lists received from various examiners are missing which otherwise are mandatory to be kept on record for further verification.

(v) Signatures of Examiners on various face sheets of answer book were different.

(vi) In certain subjects such as Forestry, Sociology, Criminal Law, Civil Law, Islamic History Paper-I, Indian History and Physiology marks were awarded exorbitantly.

(vii) In certain cases candidates were allotted marks on question on face sheet although they did not actually attempt to answer these questions.

(viii) In Geography paper, one of the selected candidates Mr. Abdul Wahab Sario Roll No. 79 Merit No. 75, the signature of actual examiner has been forged as it does not tally with the signature of actual examiner. No doubt that this copy was never assessed by the examiner but the Controller of Examination Mr. Umer Zaur has committed this forgery and assigned fabricated marks on the answer copy.

(ix) In number of answer sheet of selected candidates, assessment has been made by the then Controller of Examination Mr. Umer Zaur who has past track record as habitual to amend and change the result of various examinations.

(x) Massive tampering took place in the history of Sindhi Literature paper where marks of 13 candidates were enhanced while manipulating/tampering with the answer sheets including face sheets.

(xi) Heinous Crime was committed by the then Controller of examination Umer Zaur while reducing the marks of 70 successful candidates who appeared in the History of Sindhi Literature paper and secured marks between 74 to 93 below the passing marks and in some cases reduced to ZERO to eliminate them from the mainstream.

(xii) Allocation of seats was also not made in accordance with the laid down procedure/criteria of the Government.

Enquiry has revealed that Mr. Umer Zaur the then Controller of Examination, Mr. Aijaz Jafferi Additional Controller of Examination and entire selection committee were involved in tampering with the result of combined competitive examination 2003, as well as misplacement/missing of answer sheets. Mr. Aijaz Jafferi who was also in charge of Examination Record Cell failed to compile the instruction in letter and spirit as contained in Sindh Public Service Commission letter No. PSC/MEC/2006/4 dated 20-04-2004”.

N.B. The ACE recommended that matter may be placed before for seeking approval to prosecute the accused persons under section 420, 465, 471 A, 34 PPC R/W Section 5(2) of Anti-Corruption Act along with 51 candidates/beneficiaries after legal vetting.

1. It is further brought on record that one NAB reference has also been filed under Section 18 and Section 24 of National Accountability Ordinance (NAO), 1999 in which also investigation revealed the manipulation of result and illegal appointments. The inquiry was converted into investigation by the Chairman NAB and Reference was filed on the same allegations.

2. The civil service is a communal expression for a segment of government put together predominantly for career bureaucrats recruited on merits. The purpose of holding competitive examination by Sindh Public Service Commission was to select and choose most deserving and competent candidates. Wrong selection of blue eyed founded on nepotism, favoritism or for some extraneous consideration or pressure lead to a chaos and turmoil in the civil service structure and also creates unrest and discontent amongst the civil servants with long serious repercussions so in all fairness the merit should be only and sole criteria in the selection process which is an integral part of good governance. The scarcity of transparency or preferential treatment to non-deserving in the appointment process would amount brutal murder of merit and excellence. The appointment process should be see-through and transparent and only competent persons ought to give way to serve rather than incompetent and unskillful persons. The menace of favoritism, nepotism and preferential treatment in the appointment process of civil servants is always cogitated pernicious and devastating. According to acclamation posted at css.com.pk which is a public service web-site, “civil services have become the key wheels on which the entire engine of the state has to move. Hence the leaders for these services are drawn through the competitive examination. The officers thus appointed are bestowed with solemn responsibilities and are scheduled to hold the highest offices of the country. Pakistan today needs young men and women, with qualities of both head and heart. To choose only such balanced individuals is the purpose of the civil services examination. So if you have intelligence, intellect, team-spirit, leadership qualities, commonsense, originality, communication skills and have a dynamic personality, then Civil Service is waiting for you....”. Our founder of nation, Quaid-e-Azam Muhammad Ali Jinnah in April 1948 at Peshawar addressed the civil servants as under:

“The reason why I am meeting you is that I wanted to say a few words to you who are occupying very important positions in the administration of this province. The first thing that I want to tell you is that you should never be influenced by any political pressure, by any political party or any individual politician. If you want to raise the prestige and greatness of Pakistan you must not fall victim to any pressure but do your duty as servants of the people and the state, fearlessly and honestly. The services are the backbone of the state. Governments are formed. Governments are defeated. Prime Ministers come and go, ministers come and go, but you stay on. Therefore, there is a very great responsibility placed on your shoulders. You should have no hand in supporting this political party or that political party, this political leader or that political leader. This is not your business.

Whichever government is formed according to the constitution, and who ever happens to be the prime minister or minister, coming into power in the ordinary course, your duty is only to serve that government loyally and morally but, at the same time, fearlessly, maintaining your high reputation, your prestige, your honour and the integrity of your service. If you start with that determination, you will make a great contribution to the building up of Pakistan of our conceptions and our dream, a glorious state and one of the greatest nations in the world.

While impressing this upon you, I wish also to take the opportunity of impressing upon our leaders and politicians in the same way, that if they ever try to interfere with you and bring political pressure to bear upon you, which leads to nothing but corruption, bribery and nepotism which is a horrible disease and for which not only your province but others too are suffering if they try to interfere with you in this way, 1 say they are doing nothing but disservice to Pakistan.

I hope that each of you will understand his own sphere of duty and responsibility and act with others harmoniously in complete cooperation, keeping in mind that each has to do his duty within the sphere to which he belongs, if on your part start with that determination and enthusiasm and I hope the other side will also realize what a terrible evil they are raising up and how it demoralizes the services to try and influence this department or that departments, this office or that officer and if you stick to your determination you will have done a great service to your nation. Putting pressure on service people is, I know, a very common fault of politicians and those with influence in political parties, but I hope you will now, from today, resolve and determine to act according to the humble advice I am giving you.

May be some of you may fall victim for not satisfying the whims of ministers. I hope it does not happen, but you may even be put to trouble not because you are doing anything wrong but because you are doing right.

Sacrifices have to be made, and I appeal to you, to come forward if need be to make the sacrifice and face the position of being put on the black list or being otherwise worried or troubled. If some of you will give me the opportunity of your sacrifice, believe me we will find a remedy for that very soon. I tell you that you will not remain on the black list if you discharge your duties honestly, sincerely and loyally to the state. It is you who can give us the opportunity to create powerful machinery which will give you complete sense of security.’ Ref: http://www.cssforum.com.pk

1. In the case of Tariq Aziz-ud-Din and others (2011 PLC (C.S.) 1130, the apex Court held that action must be based on fair, open and just consideration to decide matters more particularly when such powers are to be exercised on discretion. Actions which do not meet these threshold requirements are considered arbitrary and misuse of power. All judicial, quasi-judicial and administrative authorities must exercise power in reasonable manner and also must ensure justice as per spirit of law and instruments regarding exercise of discretion. Obligation to act fairly on the part of administrative authority has been evolved to ensure rule of law and to prevent failure of justice. Object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind. Such objective can be achieved by following rules of justness, fairness and openness in consonance with command of Constitution enshrined in different Articles including Articles 4 and 25 of the Constitution. Good governance is largely dependent upon upright, honest and strong bureaucracy particularly in written Constitution wherein important role of implementation has been assigned to bureaucracy. Civil service is backbone of administration and purity of administration to a large extent depends upon purity of services. Such purity can be obtained only if promotions are made on merit in accordance with law and Constitution, without favoritism or nepotism. Institution is destroyed if promotions/appointments are made in violation of law. (Delhi Transport Corporation v. D.T.C. Mazdoor Congress AIR 1991 SC 101 and Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997(7) SCC 622 rel.).

2. The finer points deducible from the gist of judicial precedents cited by the learned counsel for and against are as follows:

A. Principle of Laches

1. No Court could dismiss a lis on the ground of laches if it defeated the cause of justice and thereby perpetuated an injustice.

2. Bar of laches could not be over emphasized in a case where the relief claimed was based on a recurring cause of action.

3. No exception to the rule that delay in seeking remedy of appeal, review or revision beyond the period of limitation provided under the statute, in absence of reasonable explanation, cannot be condoned and in the same manner if remedy of Constitutional petition is not availed within reasonable time, the interference can be refused on the ground of laches.

4. Laches cannot be equated with limitation and by itself is not a sufficient ground to non-suit a person if the equities are not against him and he has not been sleeping over his right or was not indolent.

5. Question of laches in Constitutional petition is always considered in the light of conduct of the person invoking the Constitutional jurisdiction of High Court. Degree of negligence of petitioner, if any and that if by grant of relief being sought by him, no injustice is caused to the opposite-party, the Constitutional petition should not be dismissed merely on the ground of laches without examining the dictates of justice.

6. Laches was a doctrine where under a party which may have a right, which was otherwise enforceable, loses such right to the extent of its enforcement, if it was found by the Court of law that its case was hit by the doctrine of laches/limitation.

7. Limitation is examined by the Limitation Act, 1908 or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved does not approach the appropriate forum within the stipulated period/time, the grievance though remains, but it cannot be redressed because if on the one hand there was a right with a party which he could have enforced against the other, but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party. Delay would defeat equity. Equity would aid vigilant and not an indolent.

8. Consideration upon which Court refused to exercise its discretion, where petition was delayed, was not limitation but matters relating to conduct of parties and change in situation.

9. Laches in the simplest form meant failure of a person to do something which should have been done by him within a reasonable time, if remedy of Constitutional petition was not availed within reasonable time the interference could be refused on the ground of laches.

Ref: PLD 2013 S.C. 268 (Umar Baz Khan vs. Syed Jehanzeb and others), 2004 SCMR 400 (Farzand Raza Naqvi and others vs. Muhammad Din through Legal Heirs and others), PLJ 2012 SC 289 (State Bank of Pakistan vs. Imtiaz Ali Khan & others) and 2014 PLC (C.S.) 1292 (Asghar Khan and others vs. Province of Sindh and others). Constitution of Pakistan.

B. Locus Poenitentiae

1. Locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of such an illegal order.

2. Award of benefit to a person in violation of law would not attract principle of locus poenitentiae.

3. Principle of locus poenitentiae was although available to Authorities whereby any order which was made by mistake could be undone yet such order could not be withdrawn or rescinded once it had taken legal effect and created certain rights in favour of any individual.

4. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights.

5. Principle of locus poenitentiae (power of receding till a decisive step taken) is available to Government or relevant authorities. Authority competent to make order has power to undo it. Order, however, cannot be withdrawn or rescinded once it has taken legal effect and certain rights created in favour of any individual.

Ref: 2000 SCMR 907 (Abdul Haque Indhar and others vs. Province of Sindh and others), 2011 SCMR 408 (Muhammad Nadeem Arif and others vs. Inspector-General of Police, Punjab, Lahore and others), 2013 SCMR 1752 (Contempt Proceedings against Chief Secretary, Sindh and others), 1997 SCMR 15 (Chairman, Selection Committee/ Principal, King Edward Medical College, Lahore and others vs. Wasif Zamir Ahmad and another), 2011 SCMR 1220 (Chief Secretary, Government of Punjab and others vs. Malik Asif Hayat), PLD 1969 S.C. 407 (Pakistan, through the Secretary, Ministry of Finance vs. Muhammad Himayatullah Farukhi).

C. Excerpt from Suo Motu Action of Supreme Court judgment on eligibility of Chairman and Members of Sindh Public Service Commission.

(1) A person of integrity and competence who meets the stipulated qualification for appointment as Chairman of the Commission be appointed in terms of Article 242(1 B) of the Constitution within two weeks from the date of the announcement of this judgment;

(2) It should be ensured that all Members of the Commission meet the prescribed qualifications;

(3) Persons of integrity and competence possessing the prescribed qualifications should be appointed to the vacant positions of Members of the Commission within four weeks of the announcement of this judgment;

(4) In view of the large scale illegalities/discrepancies committed in the written tests and interviews of CCE-2013 the same are set aside and cancelled. It is, however, clarified that the screening tests results are not cancelled/set aside;

(5) Fresh written tests for CCE-2013 for the posts as advertised be held as soon as possible after the appointment of the Chairman and Members of the Commission and after the verification of the credentials of the existing/remaining Members;

(6) Only the 2,813 candidates who had earlier taken the written tests of CCE-2013 for the 182 posts be permitted to take the fresh written tests even if in the meanwhile they have crossed the stipulated upper age, and without requiring payment of any additional fee/charge;

(7) When the papers of the written tests are sent for checking/marking the identity of the candidates must be kept anonymous/secret;

(8) The marks of the written tests should be publicly displayed on the Commission’s website, on the notice board in its premises and in one Urdu, English and Sindhi newspaper; disclosure should be made of the marks obtained in each subject as well as the cumulative total against the candidates’ roll numbers;

(9) All those who obtain the prescribed minimum pass marks in the written tests must be invited for the interview;

(10) The marks allocated for the interview must be allocated to the interviewers equally, however, to avoid a fraction the Chairman, or in his/her absence, the senior most Member shall have the higher mark rounded off to avoid a fraction;

(11) The Commission shall keep a separate record of the marks awarded by each interviewer and each interviewer should sign and date the same as well as the combined results;

(12) The results of the interview should be displayed in the same manner as mentioned above in point (8) with respect to written tests;

(13) The written tests, their checking/marking, interviews and display of results be completed as soon as is practicable since the matter pertains to CCE-2013;

(14) Candidates should be selected for all the advertised posts, unless they don’t pass the written tests and the interview; and

(15) The candidates who are selected by the Commission should be offered appointment by the Government as per applicable law, and if any candidate declines the candidate who is next on the merit list be offered the same.

(16) That in the future the Government should provide a list of existing vacancies, which should include a list of posts that may become vacant in the foreseeable future and a list of new posts to the Commission every year and by a specified date. Upon receipt of such lists the Commission should start making arrangements for holding of competitive examinations; for the current year 2017 the said lists should be provided by the Government to the Commission within sixty days, upon receipt whereof the Commission should invite applications from interested individuals by placing advertisements, which should also clearly stipulate the legally mandated reserved seats, including those for women and persons having physical disabilities. It is clarified that the direction contained in this paragraph is not applicable to the examinations for CCE-2013 in respect whereof separate directions hereinabove have been issued.

Ref: 2017 SCMR 637 (Suo Motu Action regarding eligibility of Chairman and Members of Sindh Public Service Commission etc.)

D. Excerpt from Supreme Court Judgment on mismanagement, corruption, nepotism and politicising of the disputed appointments in Employees Old-Age Benefits Institutions (EOBI).

1. The above unanimous report prepared by a six Member high powered committee, constituted by the management of EOBI speaks volumes about the mismanagement, corruption, nepotism and politicising of the disputed appointments in a mala fide manner, thereby crushing the merit criteria in a public owned establishment of the Government

4. Indeed, if we allow these petitions substantial hardship is likely to be caused to many of the respondents/appointees who will lose their appointment/jobs because of the illegalities in their respective appointments committed by EOBI, but the fact remains that such ill-gotten gains cannot be defended/ protected under any cannon of law or even on humanitarian considerations, as, such gains availed by the illegal appointees were at the cost of other deserving candidates who had applied for these posts, being citizens of this country, with a legitimate expectation that they would be able to seek appointment on the basis of their eligibility-cum-merit criteria to be observed as per the applicable rules and regulations of the EOBI

5. Having discussed as above, another important aspect of the case, which needs serious consideration is about the fate of the illegal appointees, which is subject matter of consideration in the present proceedings. If we look at this aspect of the case from the angle of those who have succeeded to get appointments in the manner, as discussed above, some of them may claim that since they met the requisite qualifications for the posts and were thus appointed, they cannot be made to suffer due to illegalities committed by the management of EOBI

8. As a sequel of above discussion, both these petitions are allowed and disposed of in the following terms:--

(a) All the illegal appointments, deputations and absorptions made in the EOBI, as detailed in the report of fact finding committee on recruitment/appointment, are declared to be without lawful authority and of no legal effect. Accordingly their services stand terminated forthwith;

(b) All these vacancies and other available vacancies in EOBI shall be advertised and filled afresh strictly in accordance with applicable rules and regulations, subject to prescribed quota, requisite qualifications and merit criteria, for which the Chairman, EOBI shall be personally responsible to ensure transparency;

(c) The matter regarding all the illegal appointments, including the appointment of Raja Azeemul Haq Minhas in the World Bank, shall be investigated by the NAB authorities; the Respondents Nos.3 to 7 and all others directly or indirectly involved in the process of such illegal appointments on the basis of corruption, nepotism and political exigencies shall be proceeded against in accordance with law with intimation regarding compliance of these directions to this Court within two months.

(d) Office shall prepare and maintain a separate file for initiating contempt proceedings, under Article 204 of the Constitution and other enabling provisions of contempt laws, against all those who are, prima facie, found guilty of violation of order dated 21-1-2011 in H.R.C. No. 48012-P of 2010, particularly in the process of appointment of 238 employees/officials during the period September 2011 to May 2012.

Ref: 2014 SCMR 949 (Syed Mubashir Raza Jaffri and others vs. Employees Old-Age Benefits Institutions (EOBI) and others).

E. Principles governing writ of quo warranto.

1. Principles governing writ of quo warranto. Under Article 199 of the Constitution all the reliefs obtainable under it are purely discretionary and on the principles governing writs of quo warranto the relief under Article 199(2)(b)(ii) is particularly so.

2. Quo warranto is not issued as a matter of course.

The Court can and will enquire into the conduct and motive of the relator.

1. In respect of order of quo warranto it is not necessary that a person must be aggrieved and no such restriction could be placed which is in fact contemplated under sub-clause (a) of clause 1 of Article 199 of the Constitution and accordingly any person irrespective of the fact whether he is an aggrieved person or otherwise can invoke the Constitutional jurisdiction by way of writ of quo warranto against usurpation of a public office by a person without having any lawful authority.

2. Constitutional jurisdiction of High Court. High Court has no jurisdiction to resolve the disputed question of fact in constitutional jurisdiction.

Ref: 2004 SCMR 1299 (Dr. Azim-ur-Rehman Khan Meo vs. Government of Sindh), 2006 SCMR 276 (Col. Shah Sadiq vs. Muhammad Ashiq and others), Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166; Federation of Pakistan v. Muhammad Saifullah Khan 1988 SCMR 1996; Azizur Rahman Chowdhury v. M. Nasiruddin PLD 1965 SC 236; Hari Shankar v. Sukhdeo Prasad AIR 1954 All. 227; M.U.A. Khan v. M. Sultan PLD 1974 SC 228; Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 and M.U.A. Khan v. M. Sultan 1981 SCMR 74 ref.

F. Suitability for appointment

1. Assessment of suitability for appointment being subjective assessment exclusively falls within the jurisdictional domain of appointing authority which cannot be compelled to make any appointment.

2. The exercise of discretion, if it is fair and transparent cannot be justiciable in the absence of any mala fide which though was alleged but could not be substantiated by producing any cogent and concrete evidence.

Ref: 2005 SCMR 445 (Asadullah Mangi and others vs. Pakistan International Airlines Corporation and others).

17. Though the respondents have taken a plea that the petitions, are hit by doctrine of laches but it is also a ground reality that the entire 2003 competitive process was considered sham and doubtful and as a result thereof an inquiry was conducted by SPSC. The inquiry report and recast results were also submitted in the Court. Anti-Corruption department also conducted inquiry and case was registered and further NAB has also filed a reference against the persons considered to be responsible for fraud and maneuvering in the result process to benefit their blue-eyed persons. After such material produced on record, it would be in the advancement of justice and dictates of justice also demand that some action should be taken rather than non-suiting the petitioners on the ground of laches when SPSC itself submitted the inquiry report and also made recommendations in the recast result.

1. It is also a ground reality that the aforesaid petitions remained undecided unfortunately for number of years and during the pendency, much water has flown under the bridge which means it is too late and pointless to change the past. Many persons have filed their applications under Order I Rule 10 C.P.C. Some of them are opposing the petitions or want to become respondents, whereas, some of them in order to support the petitions have filed their applications for becoming petitioners. Many applications under Order 1 Rule 10 C.P.C were allowed at different point of time and some applications are still pending including two applications filed for restoration of two earlier dismissed applications moved under Order 1 Rule 10 C.P.C. It is also a ground reality that those persons who were declared successful and appointed though in a nontransparent and fraudulent manner have already served number of years since the date of the appointments and in the earlier inquires they were not provided any opportunity or right of audience to defend the inquiry/allegations. During the proceedings, it was also intimated to the Court that various persons from their, original post have travelled too long and got promotions according to their venue of progression and some of them are at the verge of their retirement. Fact remains that the inquiry was conducted by SPSC, recast result was also manifesting some fraudulent deeds, Anti-Corruption conducted inquiry and the NAB reference is also pending but all these proceedings so far have not been culminated with a verdict to charge the responsible persons with some conviction/penalty. In our considerate view, the Government should have taken some action at the relevant time when the complaints were lodged against the sham competitive process and the members of the SPSC themselves held that the process was not transparent but it is very sorry state of affair that no action was taken to scrap the entire competitive process at relevant time and to call upon the candidates to appear in the process afresh which was the dire need to resolve the issue and to maintain the transparency, propriety and decorum which was essential for revamping and restoring the confidence of general public in order to save the sanctity and sacredness of SPSC as an institution of well repute. The respondents have also taken a plea of locus poenitentiae but it is well settled principle of law that award of some benefit to a person in violation of law would not attract principle of locus poenitentiae. At the same time, it is well settled exposition of law that disputed question of fact or factual controversy cannot be resolved in the writ jurisdiction of this Court and after serving long time by the persons who were declared successful though through a sham and fraudulent process but the fact remains that they were appointed and continuing their job and according to their venue of progression, some of them have also got promotions by efflux of time. So in all fairness, instead of scrapping entire process after such a long time, this would be in the advancement of justice to evolve a strategy and mechanism so that the injustice, if any done with the petitioners or other qualified candidates or those who have been declared successful through fraudulent means under the garb of favoritism should be provided an equal opportunity for showing cause whether they were appointed on merits rather than Sifarish/favoritism. In the replies/counter affidavits even in the arguments made on behalf of petitioners and the respondents, various factual controversies were raised with the name of different persons, papers and marks that could not be scrutinized in these petitions but a commonsensical mechanism should be evolved so that the credentials and antecedents of each petitioner and the private respondents including those persons who were declared successful but they are not arrayed as respondents in these petitions should be provided right of audience to submit their replies before the inquiry committee or the inquiry commission and after deliberating the entire facts and circumstances, the inquiry commission should give their findings for further actions by the competent authority on case to case basis.

19. In the suo motu action regarding the eligibility of the Chairman and Members of SPSC, the hon’ble Supreme Court found large scale illegalities/discrepancies committed in the written test and interview of CCE-2013, therefore, results were set aside, however, the screening test results were not cancelled with further directions to hold fresh written test for CCE-2013 as advertised earlier and only the candidates who had already taken the written test were permitted to take fresh written test. At this juncture the position is slightly distinguishable and not at par. Here the competitive examination of 2003 is under challenge when numerous persons were declared successful and appointed and performing their jobs, it is not a case in which they only appeared in the written examination but before the appointment their results were cancelled or declared null and void with further option to appear in fresh 2003 competitive examination. At this stage, reversion to the status quo ante is not possible but at the same time the illegalities in the process cannot be overlooked and disregarded. In the case of Syed Mubashir Raza Jafferi and others vs. Employees Old Age Benefit Institute (EOBI) and others, the Supreme Court held that the unanimous reports prepared by High Powered Committee constituted by the management of EOBI speaks volume about the mismanagement, corruption, nepotism and politicizing with the disputed appointment in a mala fide manner thereby crushed the merit criteria, therefore, all the illegal appointments were declared to be without lawful authority. We are revitalized by the dictum laid down by the hon’ble Supreme Court but here also a noticeable feature which cannot be overlooked that before the Apex Court there was unanimous report of High Powered Committee constituted by the EOBI management but in the case in hand when the illegalities and wrongdoings came into the knowledge of Government of Sindh, no High Powered Committee was constituted to examine and unearth the illegalities committed by the officials of SPSC in the competitive examination process 2003 even learned counsel for the respondents cast aspersion against the inquiry report of SPSC with the plea that they had no authority to inquire into the matter even some of them also questioned the recast result. A criminal case and the internal or departmental/domestic inquiry conducted by the competent authority to see-through the appointment process have two distinct features and characteristics which neither overlapped nor having any overriding effect. In case of misconduct, the Government of Sindh may initiate a disciplinary proceeding against any employee under E&D Rules. At the same time, if any such incumbent is found to have committed any offence, they also set in motion the criminal law and institute separate criminal proceeding. We have noticed that no action was taken to culminate the matter in view of the Anti-Corruption inquiry report and the NAB reference is also pending against SPSC officials and others but Government of Sindh had not taken any action so far nor endeavored to probe whether the process was transparent or not. Without proper investigation and fact-finding to the illegalities and dishonesties by the duly constituted High Powered Inquiry Commission and without providing opportunity of hearing to all concerned, it would be unjust and unfair to take any drastic action that would amount to violation of natural justice and fundamental right of fair trial enshrined and envisioned under Article 10-A of Constitution of Islamic Republic of Pakistan. In unison an inquiry is also required to be conducted to ventilate and assuage the anguish and distress of those who qualified the competitive examination but by hook or by crook they were declared unsuccessful to favour and accommodate blue-eyed candidates, therefore, we are also of the firm view that a High Powered Commission should be constituted to examine and scrutinize the entire process, fix the responsibility and propose proper action to the competent authority to conclude the matter at some logical end.

20. The bottom line streaming from the ratio decidendi of the judicial precedents make this luminous that no Court can dismiss a lis on the ground of laches if it defeated the cause of justice and thereby perpetuated an injustice or the relief claimed is based on a recurring cause of action. The Constitutional petition should not be dismissed merely on the ground of laches without examining the dictates of justice. Whereas the locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of such an illegal order. Award of benefit to a person in violation of law would not attract principle of locus poenitentiae. So far as the genre of writ of quo warranto is concerned, it is not necessary that a person must be aggrieved and accordingly any person irrespective of the fact whether he is an aggrieved person or otherwise can invoke the Constitutional jurisdiction by way of writ of quo warranto against usurpation of a public office by a person without having any lawful authority.

1. The honourable Supreme Court has already held that a person of integrity and competence who meets the stipulated qualification for appointment as Chairman of the Commission should be appointed; to ensure that all Members of the Commission meet the prescribed qualifications and persons of integrity and competence possessing the prescribed qualifications should be appointed to the vacant positions of Members of the Commission. (Ref: 2017 SCMR 637). The credibility of any institution cannot be maintained unless their officers are appointed on merits and if they are appointed on sifarish or on the basis of favoritism then in return they will do the same and surrender/submit to the wishes of their master in the appointment and selection process that would tantamount to massacre and slay the concept and credence of criteria of merit alone.

2. As a result of above discussion, the petitions are disposed of in the following terms:--

i. The Chief Secretary, Government of Sindh is directed to constitute an Inquiry Commission, consist of three members i.e. senior member SPSC, Secretary, Service General Administration & Coordination Department (SGA&CD) and Secretary Law, Government of Sindh.

ii. The Chief Secretary shall notify the Inquiry Commission with the names of its members within fifteen days.

iii. The venue of inquiry shall be the office of Secretary, SGA&CD, Government of Sindh.

iv. The Inquiry Commission shall examine the entire competitive examination 2003 process and also summon the relevant record including the inquiry report and recast result.

v. The Inquiry Commission shall also summon all the petitioners, private respondents including those who have filed applications under Order I Rule 10 CPC for impleading them in the petitions either to support or oppose and the persons who participated in the process and declared successful but not made party to the aforesaid petitions. The Inquiry commission shall vet the list of successful candidates also so that equal opportunity should be provided to all concerned persons. The Inquiry Commission shall provide ample opportunity of hearing to all concerned. The first date of inquiry shall be communicated in writing at least ten days before the first inquiry session.

vi. The Inquiry Commission shall take stock of illegalities committed in the appointment process of 2003 competitive examination that how incompetent or unsuccessful candidates were appointed and deserving candidates were declared failed, the Inquiry Commission shall submit the comprehensive report with practicable and rational recommendations to the competent authority. It was also addressed to us during course of hearing that some of the candidates who were declared failed by fraudulent means are already in Government jobs through different process even so in a different service structure and they have also claimed the treatment at par with those who were appointed in 2003 process on account of favoritism and nepotism. The recommendation of the inquiry commission shall also take account of equable pathway for those candidates if proved that they appeared in the process and passed the examination but declared failed by hook or by crook and were deprived and left out despite merit then what is most possible venue of progression commensurate to their existing jobs for ventilation and alleviation of sufferings, injustice and long-drawn-out distress.

vii. The Inquiry Commission shall conclude the proceedings within six months and Secretary Law, Government of Sindh shall submit the report duly signed by all inquiry commission members to the Chief Secretary, Sindh.

viii. The competent authority shall consider the recommendations and pass necessary orders within one month without any discrimination or favor or bias and communicate the outcome to all concerned. However, no adverse action shall be taken against any person without serving show cause notice and providing a fair right of personal hearing.

ix. Since we have already provided right of audience by the Inquiry Commission to all petitioners and private respondents including those who applied under Order 1 Rule 10 C.P.C by their separate applications to become party in the above petitions so we also deem them proper and necessary party consequently, they are impleaded and all the pending applications filed under Order 1 Rule 10 C.P.C are disposed of accordingly. The amended title may be filed by the petitioners in the concerned petitions.

x. The compliance report shall be submitted by the Chief Secretary Sindh through Advocate General Office.

xi. In the end, we also feel it our utmost sense of duty to direct Sindh Public Service Commission to uphold transparency, fairness and impartiality in all examinations conducted by them in future and make selection on merit alone which is keystone and foundation for maintaining their integrity and uprightness as an institution of repute.

xii. Copy of this judgment may be transmitted to the Chief Secretary Sindh, Chairman SPSC, Secretary, Service General Administration & Coordination Department (SGA&CD), Secretary Law, Government of Sindh and learned Advocate General Sindh for compliance.

(Y.A.) Petitions disposed of.

PLJ 2021 Karachi 36 (DB)

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

ABDUL SAMI MEMON and 8 others--Petitioners

versus

FEDERATION OF PAKISTAN through Secretary Establishment Government of Pakistan and 5 others--Respondents

C.P. No. D-910 of 2019, decided on 20.8.2019.

Constitution of Pakistan, 1973--

----Art. 199(1)(a)(ii) & 199(5)--Petitioners were serving in Pakistan Steel Mills--Appointment of Deputy Chief Engineers--Entitlement for promotion--Writ of quo warranto--Aggrieved person--Principle of laches--Entitlement to make rules--Determination of eligibility or fitness--Jurisdiction--Lacking of qualifying service--Principle in service jurisprudence--It is for Competent Authority, who could make appointments, determine seniority, eligibility, fitness and promotion and other ancillary matters relating to terms and conditions of employees as prescribed under Act and Rules framed thereunder--A writ of quo warranto is not available to one set of Civil/Public Servants against another set of Civil/Public Servants and if a colleague is allowed to challenge another colleague’s appointment, there would be no end to this; there will be anarchy in Service structure--Petitioners if claiming issuance of a writ of quo warranto must satisfy this Court, inter alia, that office in question is a Public office and is held by an usurper without legal authority, which leads to enquiry as to whether appointment of said alleged usurper has been made in accordance with law or not, which Counsel for Petitioners has failed to demonstrate before this Court--Petitioners have not been able to show themselves as an ‘aggrieved person’ in terms of Article 199 of Constitution of Islamic Republic of Pakistan to agitate any bona fide grievance--Stance of Petitioners is that amendment in relevant provisions of Rules was quite unjustified as rational in amendment is against service rules of PSM 2004--Competent Authority of PSM is entitled to make rules in interest of expediency of service and to remove anomalies in Service Rules--It is Service Rules Committee which has to determine eligibility criteria of promotion and it is essentially an administrative matter falling within exclusive domain and policy decision making of Respondent-PSM and interference with such matters by this Court at this stage is not warranted until it is shown that aforesaid amendment is ultra vires to Constitution, however, in present matter no vested right of petitioners are involved in matter of promotion or rules determining their eligibility or fitness, and this Court has no jurisdiction by means of writ to strike it down--Entire claim of Petitioners is refuted by Respondent-Pakistan Steel Mill on premise that for promotion to higher grade in BPS-20, 17 years’ service aggregate in grade 19 is qualifying service for promotion as per amendment brought in service Rules 2004, whereas petitioners have no qualifying service for promotion in BPS-20 as they were promoted in BPS-19 in year 2011, which explicitly shows lack of qualifying service, for promotion in Grade-20, 17 years’ service in Grade-19 is requirement of law and petitioners do not meet said criteria--It is well established principle in service jurisprudence that prescribed length of service for promotion to BS-19 is 12 years in BS-17 and above--Besides Petitioners filed instant petition which also suffers from laches; therefore, they are not entitled for relief claimed in instant petition--Besides on merit, petitioners have no case for further consideration--Petition dismissed.

[Pp. 40, 41, 43, 44, 45 & 46] A, B, C, D, E & F

2004 SCMR 1299, 2014 SCMR 1189, PLD 1960 SC 81 and

2016 SCMR 1021 ref.

Mr. Abdul Samad Memon, Advocate for Petitioners.

Mr. Sanaullah Noor Ghori,Advocate for Respondents Nos. 3 to 6.

Mr. Muhammad Nishat Warsi, DAG for Respondent.

Date of hearing: 20.8.2019.

Judgment

Adnan-ul-Karim Memon, J.--Basically, the Petitioners are seeking direction to the Management of Pakistan Steel Mill to convene Departmental Promotion Committee Meeting for their promotion in next rank as Deputy Chief Engineer/Deputy General Manager (PSE-V) as per Service Rules and Regulation of Pakistan Steel, 2004, on the premise that, initially they were appointed in PSE-II in different years i.e. 1986 to 1990, lastly i.e. on 25th March, 2011, they were promoted as Superintending Engineers/Managers in PSE-IV. Petitioners claim that on account of their meritorious services and after earning good reputation in the organization, they are entitled for further promotion in PSE-V. Petitioners have also prayed for issuance of writ of quo warranto against private Respondents Nos.3, 4 and 5, working on Additional charge basis, as Acting Deputy Chief Engineers, in their respective Departments, to vacate the aforesaid posts which they are holding with effect from 2015 up to December 2018 on the grounds that the said posts are for officers in higher rank; whereas, Respondents Nos.3, 4 and 5 have been unlawfully posted as In-charge of different departments of Pakistan Steel Mill (PSM), which is in violation of the Judgment passed by the Honorable Supreme Court of Pakistan.

1. Mr. Abdul Samad Memon, learned Counsel for the Petitioners has argued that the Respondent No. 5 issued 06 Office Memorandums dated 27th December, 2018 (available at Page-23 to 33 of Memo. of Petition) and made the private Respondents as Acting Deputy Chief Engineers/Incharge in their respective departments which is in violation of Pakistan Steel Officers’ Service Rules and Regulation amended up to 31st December, 2004; that the Petitioners have completed their length of service i.e. seven years for promotion in the next grade i.e. PSE-V; that the private Respondents have been posted as Acting Deputy Chief Engineers/In-charge with effect from 2015 up to 27th December, 2018 in their respective departments, which is clear violation of the Rules and Regulations of Pakistan Steel Mill; that as per regulation, the Acting Deputy Chief Engineers have not only been blessed with the benefits of additional charge of higher post i.e. Acting Deputy Chief Engineer for more than six months but are enjoying all perks, privileges, benefits and facilities for an unlimited period of time; that the Respondent No. 6 issued Circular dated 20th September, 2010 and the same was approved by Respondent No. 3 in their meeting held on 28th August, 2010 and amended the length of service to aggregate 17 years for promotion as Deputy Chief Engineer/Deputy General Manager in PSE-V which is against the law. He lastly prayed for allowing the instant Petition.

2. Mr. Sanaullah Noor Ghori, learned Counsel appearing for Respondents Nos.3 to 6 has argued that the Petitioners have no locus standi to file the instant Petition which even otherwise is suffered from laches for long period as the Petitioners have remained silent for long time i.e. 2015 to 2019; that Respondent No. 3 did not violate any law nor misused his lawful authority as the Memorandum dated 27.12.2018 had shifted the working arrangement in PSM due to severe and non-availability of the incumbents and said arrangement was made as a stopgap arrangement; that the petition is not maintainable against Respondent No. 2 having no statutory rules of service; Petitioners have knowingly neglected and failed to approach the proper forum within statutory period; that the petition contains serious disputed and controversial facts as such the remedy if any lies before the learned Civil Court; that Pakistan Steel Mill is not functional since 2015 and by now is running without any Chairman and as a stopgap arrangement, one Senior Officer of PSM is looking after the affairs of the Chairman PSM Office. He prayed for dismissal of the instant Petition.

3. We have considered contentions of the learned Counsel for the parties and have minutely gone through the material available on record.

4. Firstly, we would address the question of the jurisdiction of this Court with regard to maintainability of the petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. The similar issue of maintainability was raised by Pakistan Steel Mills in the case of Syed Muhammad Shoaib and others v. Messrs Hadeed Welfare Trust and another. This Court, after hearing the parties, discarded the said objection of maintainability of Petitions against Pakistan Steel Mill, view of bench of this Court was affirmed by the Honorable Supreme Court of Pakistan in Civil Petitions Nos.121-K of 2017 and 122-K of 2017 by Messrs Hadeed Welfare Trust and another v. Syed Muhammad Shoaib and others respectively wherein the Honorable Supreme Court has maintained the Judgment dated 15.12.2016 passed by this Court against M/s Hadeed Welfare Trust (A subsidiary of Pakistan Steel Mill). It is relevant to note that the Government is regulator and dispenser of special services and it has power to create jobs, issue licenses, fix quotas, grant leases, enter into contracts and provide variety of utility services and basic amenities to the people. Such entire entrepreneurial activities are at times carried out through companies created under the statutes or under the Companies Ordinance, 1984. The test to determine whether such company is a “person” amenable to judicial review has been generally classified by the Courts as the “Functional Test”. If the functions of these companies/institutions have an element of public authority or if they are performing public or statutory duties and carrying out transactions for the benefit of the public at large and not for private gain or benefit, then their action will be amenable to judicial review. The Honorable Supreme Court in the case of Abdul Wahab and others v. HBL and others (2013 SCMR 1383), held that two factors are the most relevant i.e. the extent of financial interest of the State/Federation in an institution and the dominance in the controlling affairs thereof. And in the case of Salahuddin v. Frontier Sugar Mills and Distillery Ltd. (PLD 1975 SC 244), the Honorable Supreme Court laid down similar test to assess whether a body or authority is a person within a meaning of Article 199 of the Constitution. The aforesaid view was further affirmed in Aitcheson College, Lahore through Principal v. Muhammad Zubair (PLD 2002 SC 326). The Honorable Supreme Court in the case of Pakistan International Airlines v. Tanveer-ur-Rehman (PLD 2010 SC 676), reiterating the earlier view, the Honorable Supreme Court laid down a similar three pronged test.

6. As per the profile of Pakistan Steel Mills, it is a State Enterprise. The Government owns the majority of shares. The Chief Executive of the Company is nominee of Government of Pakistan and has been delegated with such powers by the Board of Directors as are necessary to effectively conduct the business of the Company. In view of the above background and status of Respondent-Pakistan Steel Mill, the same can ordinarily be regarded as a ‘Person’ performing functions in connection with the affairs of the Federation under Article 199(1)(a)(ii) read with Article 199(5) of the Constitution, thus, the High Court has an entry point to exercise judicial powers in the subject affairs of Respondent-Steel Mill under the Constitution. Our view is supported by the decision rendered by the Honorable Supreme Court in the case of Ramna Pipe and General Mills (Pvt.) Ltd v. Sui Northern Gas Pipe Lines (Pvt.) Ltd. (2004 SCMR 1274). The aforesaid view was further affirmed in the cases of Pakistan Defence Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707), Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others (2015 SCMR 1257).

7. The light of aforesaid judgments passed by the Honorable Supreme Court, the objection about the maintainability of the instant Petition has no force and is accordingly rejected.

8. On merits, we have examined the case of the Petitioners, whether they are eligible and entitled to be considered for promotion in the next rank, as agitated by them. For consideration of promotion in the next rank, the Petitioners have to show that they are eligible and fit for promotion in the next rank. The promotion of a public servant depends upon eligibility, seniority-cum-fitness and availability of vacancy. It is for the Competent Authority, who could make appointments, determine seniority, eligibility, fitness and promotion and other ancillary matters relating to the terms and conditions of the employees as prescribed under the Act and Rules framed thereunder. Record reflects that the case of Petitioners was considered for promotion to the Grade of Superintending Engineer (SE) (PSE-IV) vide Office Memorandum dated 25.3.2011 and for next promotion as Deputy Chief Engineer/Deputy General Manager (PSE-IV) the Respondents issued Circular dated 20th September, 2010 whereby amendment in Pakistan Steel Officers’ Service Rules and Regulations was brought in the following manner:--

| | | | | --- | --- | --- | | From | To | Qualifying period from the date of induction | | AXEN/A M | XEN/D.M | 05 years aggregate experience | | XEN/DM | S.E/Manager | 10 years aggregate experience | | S.E/Manager | D.C.E/D.G.M | 17 years aggregate experience |

This amendment will come into force w.e.f. 28.08.2010 i.e. the date of approval of Board of Directors.

1. learned Counsel for the Petitioners has emphasized that as per Rules 2.33 and 34 as discussed supra, Petitioners are entitled for promotion as Deputy Chief Engineer/Deputy General Manager in PSE-V which is equivalent to Grade BPS-20. To appreciate the aforesaid contention and for the sake of convenience, an excerpt of the Rule 2.34 of Chapter-II of Pakistan Steel Officers’ Service Rules and Regulation amended upto 31st December, 2004 is reproduced as under:--

Prescribed length of service for consideration of promotions to various grades.

ENGINEERING/NON-ENGINEERING CADRE

| | | | | | --- | --- | --- | --- | | CADRE | PROMOTION TO THE POST | MINIMUM QUALIFYING SERVICE IN THE GRADE | PROMOTION CRITERIA | | Special Grade Mistry Technical Assistant PG-VII | Junior Technical Officer/Junior Executive Officer | 05 years | Seniority-cum-fitness | | Junior Technical Officer/Junior Executive Officer | Assistant Technical Officer/Assistant Executive Officer | 05 years | | | Assistant Technical Officer/Assistant Executive Officer | Technical Officer/Non-Technical Officer | 05 years | | | Technical Officer/Non-Technical Officer | Assistant Manager | 07 years | | | Assistant Manager | Deputy Manager | 07 years | | | Assistant Manager/ Deputy Manager | Manager | 12 years | | | Manager | Dy General Manager | 07 years | Selection post. Best out of best formula will be applied. The selection Board will comprise of Executive Directors/ Chairman, Pakistan Steel and Chairman will be the competent authority to approve | | Manager/Dy General Manager (Selection Post) (Diploma Holder will not be promoted beyond the post of Manager) | General Manager (Selection Post) | 10 years | | | General Manager (PSMC-III) | Executive Director/Principal Executive Officer (Selection Post) PSMC-II | 05 years | Selection post. Best out of best formula will be applied. Promotion will be made on recommendation of Board of HR Committee and will be approved by the Board of Directors |

1. At this stage, we confronted the learned Counsel for the Petitioner with the aforesaid amendment which is in force w.e.f. 28.8.2010, whereas the Petitioners were promoted in PSE-IV in the year 2011 and the length of service for further promotion in PSE-V is seventeen years aggregate experience, which the Petitioners are lacking. He replied that since the Petitioners were appointed w.e.f. 1986 to 1990 in PSE-II, they have length of service to be promoted in next rank. We are not satisfied with the aforesaid assertion of the learned Counsel for the petitioners on the premise that even if the Petitioners have the length of service for further promotion as agitated by the learned Counsel, then there are other conditions/criteria for consideration of promotion in the next rank i.e. PSE-V i.e. seniority-cum-fitness and subject to availability of post, which the Petitioners have to cross the threshold as discussed supra. In our view, neither any seniority nor any promotion can be claimed or granted without actual length of service on account of vested rights. We are fortified by the decision rendered by the Hon’ble Supreme Court in the case of Chairman FBR v. Muhammad Asfandyar Janjua and others (2019 SCMR 349).

2. We have also examined the stance of the Respondent-Pakistan Steel Mill. Besides, in our view, the reasoning as put forwarded by the Respondents is tenable in law for the simple reason that if the officer does not possess requisite qualifications, experience and length of service to qualify for regular appointment/promotion in a department, then the competent authority to appoint the Public servant on acting charge basis and current charge basis, if a post is required to be filled through promotion, then only the most senior public servant eligible for promotion, but does not possess the required length of service, appointment of eligible officer may be made on acting charge basis after observing all the codal and procedural formalities. The main reasoning of posting of the private respondents on the aforesaid post being In-charge of the departments, prima facie, is a stop-gap arrangement due to precarious condition of Pakistan Steel Mill as agitated by the learned Counsel representing the Pakistan Steel Mill.

12. In the light of foregoing and keeping in view the circumstances of the present case, we are of the considered view that a writ of quo warranto is not available to one set of Civil/Public Servants against another set of Civil/Public Servants and if a colleague is allowed to challenge another colleague’s appointment, there would be no end to this; there will be anarchy in the Service structure. Reliance is safely placed on the cases of Dr. Azeem ur Rehman v. Government of Sindh (2004 SCMR 1299) and Ali Hassan Brohi v. Province of Sindh and others (SBLR 2015 SC 221).

13. We have noticed that Petitioners if claiming issuance of a writ of quo warranto must satisfy this Court, inter alia, that the office in question is a Public office and is held by an usurper without legal authority, which leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not, which the learned Counsel for the Petitioners has failed to demonstrate before this Court. However, we are cognizant of the fact that relief is not to be denied to the litigants on technical consideration, however, insistence is placed on initiating proceedings promptly and within a reasonable time to avoid the question of laches as the instant Petition is hit by laches for almost 08 months and Writ of quo warranto would not be a remedy for a person to air his private vengeance. Petitioners have not been able to show themselves as an ‘aggrieved person’ in terms of Article 199 of the Constitution of Islamic Republic of Pakistan to agitate any bona fide grievance, therefore they have no case at all to invoke the Constitutional Jurisdiction of this Court, through the instant writ petition. We are fortified with the decisions rendered by the Honorable Supreme Court in the cases of Pakistan Tobacco Board and another v. Tahir Raza and others [2007 SCMR 97], Province of Sindh and others v. Ghulam Fareed and others [2014 SCMR 1189], Sarwar Ali Khan v. Chief Secretary to Government of Sindh [PLD 1994 SC 233] and Syed Noorul Hasan v. The Secretary, Ministry of Industries Government of Pakistan, Islamabad and others [1987 SCMR 598].

14. Adverting to the main contention of the learned Counsel for the Petitioners with regard to their promotion, it is well settled law that for promotion to selection posts in BPS-19 and above an employee must fulfill the following conditions as prescribed from time to time by the Government:

(i) Quality Service.

(ii) Eligibility threshold (minimum score/marks in CRs)

(iii) Qualifications as prescribed by Methods of Appointment and Qualification (MAQ)

(iv) Relevance of Experience.

(v) Quality or output of work and integrity.

(vi) Training etc.

15. In the above perspective, whether this Court has the jurisdiction in the matter to strike down rules relating to Civil/Public Servants regarding their appointment and promotions and amendments made therein. The stance of the Petitioners is that amendment in the relevant provisions of the Rules was quite unjustified as the rational in the amendment is against the service rules of PSM 2004. In our view, the Competent Authority of PSM is entitled to make rules in the interest of expediency of service and to remove anomalies in Service Rules. It is the Service Rules Committee which has to determine the eligibility criteria of promotion and it is essentially an administrative matter falling within the exclusive domain and policy decision making of the Respondent-PSM and the interference with such matters by this Court at this stage is not warranted until it is shown that the aforesaid amendment is ultra vires to the Constitution, however, in the present matter no vested right of petitioners are involved in the matter of promotion or the rules determining their eligibility or fitness, and this Court has no jurisdiction by means of writ to strike it down as held by the Hon’ble Supreme Court in the case of The Central Board of Revenue, Government of Pakistan v. Asad Ahmad Khan (PLD 1960 SC 81), the relevant portion therefrom is reproduced herein below:

“In our opinion the High Court made the above order without taking into consideration all the factors relevant to the case, namely, in the first place the taking out of the post of Deputy Superintendent of the category of class III, to which the petitioners belong amounted to abolition of the post and its upgrading on a higher scale of pay to a creation of the new post; appointment to which required a stricter test of efficiency by a competitive examination. Besides, all the Inspectors were given the right to sit in the examination for any number of times to qualify themselves for promotion. At the same time the pay scale of those, who could not succeed, was raised to the limit of Rs. 350, namely, the same pay as that of a Deputy Superintendent when it was a class III post. In the circumstances it cannot be said that any rights of the petitioners were infringed, which they could enforce by a writ petition. The Government has every right to make rules to raise the efficiency of the services, and if no vested right is denied to a party, the High Court had no jurisdiction to interfere by means of a writ.”

(Emphasis supplied)

16. On the aforesaid proposition, we seek guidance from the judgment rendered by the Hon’ble Supreme Court in the case of Muhammad Hayat and others v. Federation of Pakistan and others (2016 SCMR 1021). In the present case, the entire claim of the Petitioners is refuted by the Respondent-Pakistan Steel Mill on the premise that for promotion to the higher grade in BPS-20, 17 years’ service aggregate in grade 19 is qualifying service for promotion as per amendment brought in the service Rules 2004, whereas the petitioners have no qualifying service for promotion in BPS-20 as they were promoted in BPS-19 in the year 2011, which explicitly shows the lack of qualifying service, for promotion in Grade-20, 17 years’ service in Grade-19 is requirement of law and petitioners do not meet the said criteria. It is well established principle in service jurisprudence that

prescribed length of service for promotion to BS-19 is 12 years in BS-17 and above. Besides Petitioners filed the instant petition on 09.02.2019, which also suffers from laches; therefore, they are not entitled for the relief claimed in the instant petition. Besides on merit, the petitioners have no case for further consideration.

17. In the light of the above facts and circumstances of the case, we do not find any merit in the captioned Petition, which is dismissed along with all the pending application(s).

(Y.A.) Petition dismissed

PLJ 2021 Karachi 46

Present: Salahuddin Panhwar, J.

KHATOON BIBI (Late) through L.Rs--Petitioner

versus

Mst. ATTIA ISHAQUE and 2 others--Respondents

Const. P. No. S-2058 and C.M.A No. 8321 of 2018, decided on 13.3.2020.

Constitution of Pakistan, 1973--

----Art. 199--Ejectment application--Allowed--Appeal--Dismissed--Petition before High Court--Allowed--Case was remanded--Default in payment of rent--Personal bona fide need--Denying of relationship of tenant and landlord--Writ of certiorari--Scope of--Rent jurisdiction--Question of relationship of landlord and tenant--Benefit of dispute--Challenge to--This Court, normally, does not operate as a Court of appeal in rent matters rather this jurisdiction is limited to disturb those findings which, prima facie, appearing to have resulted in some glaring illegalities resulting into miscarriage of justice--Captioned petition fall within writ of certiorari against judgments passed by both Courts below in rent jurisdiction and it is settled principle of law that same cannot be disturbed until and unless it is proved that same is result of misreading or non-reading of evidence--Question, so surfaced, needs to add that rent jurisdiction has got nothing to do with- title or ownership but shall be competent only if there exists relationship of landlord and tenant--Equally such dispute, if any, would not be available to, be presented for ‘determination/adjudication because such adjudication/determination is not within competence/jurisdiction of Rent hierarchy--Needless to add that if any observation in that regard is made by a Rent Controller or appellate authority thereof, same would not cause any prejudice to competent of a Civil Court to decide such controversy--Decision of competent Civil Court on any civil dispute shall prevail--Petitioner, once having admitted to be tenant, cannot deprive respondent from possession of property only which, too, on ground that there is dispute between two wives of late Muhammad Ishaque (landlord), who was residing in that premises--Mst. Atia Ishaque was also residing in that premises at that time and still she is residing there--Moreover, there are concurrent findings of both Courts below wherein findings regarding question of relationship of landlord and tenant as well default have properly and legally been adjudicated--With regard to earlier order of this Court whereby case was remanded back with direction to decide controversy with regard to gift deed and lease is concerned, suspension of lease deed by Katchi Abadi or any observation or declaration with regard to legal character of property in favour of any party has no nexus with rent jurisdiction--Accordingly, Petitioner cannot get benefit of dispute with respondent and Mst. Tahira--findings on ground of personal bona fide also do not appear to be unjustified or unreasonable, thus, failure of petitioner in pin-pointing any material illegalities in concurrent findings of both rent hierarchy is sufficient for dismissal of instant petition--Petition was dismissed.

[Pp. 48, 52 & 53] A, B, C & D

2001 SCMR 1434 ref.

Mr. Abdul Waheed Siyal, Advocate for Petitioner.

Ms. Humaira Junaid, Advocate for Respondent No. 1.

Date for hearing: 13.3.2020.

Order

This petition assails judgment/order dated 07.08.2018 passed by appellate Court in FRA No. 106/2018 and order dated 30.04.2018 passed by Rent Controller in Rent Case No. 155/2003 whereby present petitioner was directed to vacate the demised premises. In the first round of litigation ejectment application filed by Respondent No. 1 was dismissed vide order dated 23.12.2006, against which FRA was filed which also met the same fate, hence the Respondent No. 1 filed petition before this Court. After hearing learned counsel for the parties, matter was remanded back to the learned Rent Controller to decide afresh after allowing the parties to lead further evidence in the light of the documents referred in the said order.

1. Precisely, the facts of the case are that the respondent filed ejectment Application No. 155 of 2003, in respect of shop/godown in premises KESC No. 1650-A-254 Sindh Katchi Abadi Authority No. R-171, Madina Colony on the grounds of default in payment of rent and personal bona fide need, to which petitioner filed his objections/written statement, inter alia, denying therein the relationship as well as questioned title of the respondent over the demised premises. Thereafter, in order to prove their assertions, parties led their evidence and ultimately the learned Rent Controller, vide order dated 30.04.2018, allowed the ejectment application against the tenant. Against such order, an appeal bearing FRA No. 106 of 2018 was preferred by the petitioner before the appellate Court, which, too, was dismissed vide judgment dated 07.08.2018. The concurrent findings of the Courts below have been challenged through the instant petition.

2. Heard learned counsel for the respective parties.

3. Learned counsel for the petitioner, inter alia, contended that there is dispute between Mst. Tahira and present respondent, both are wives of deceased Muhammad Ishaque, however, he admits that petitioner was tenant of deceased Muhammad Ishaque, husband of respondent as well Mst. Tahira since 16/17 years and there was no agreement. Admittedly, property is commercial cum residential; half portion is commercial and half portion is residential wherein Respondent No. 1 is residing as her dwelling house. Candidly, lease is in favour of Respondent No. 1 and Mst. Tahira is claiming gift deed; there is dispute between two wives of deceased Muhammad Ishaque and petitioner claims that though he is tenant but Respondent No. 1 is not claimant.

4. The respondent, however, opposed the petition being not maintainable.

6. Now, before proceeding further, it needs to be reiterated that this Court, normally, does not operate as a Court of appeal in rent matters rather this jurisdiction is limited to disturb those findings which, prima facie, appearing to have resulted in some glaring illegalities resulting into miscarriage of justice. The finality in rent hierarchy is attached to appellate Court and when there are concurrent findings of both rent authorities the scope becomes rather tightened. It is pertinent to mention here that captioned petition fall within the writ of certiorari against the judgments passed by both Courts below in rent jurisdiction and it is settled principle of law that same cannot be disturbed until and unless it is proved that same is result of misreading or non-reading of evidence. The instant petition is against concurrent findings recorded by both the Courts below, thus, it would be conducive to refer Paragraphs No. 13 and 17 of the appellate Court:

13. After hearing of the arguments and perusal of the record including impugned order it appears that some aspects, appearing on the face of record, are admitted aspects being not denied by the respective parties. First of all, it is an admitted position of the record that the subject property was in katchi abadi and late Muhammad Ishaq had no legal title or right on the same. In same context, it is also an admitted position of record that Mst. Tahira’s, who was also wife of the Ishaq, status is same. She also had no legal title document or legal right on the same property. Secondly, it is matter of the record that Mst. Atia got the subject property leased in her favour by virtue of registered lease deed No. 17692, Book-1, dated 30.11.2005 and deed of rectification dated 27.12.2005. Thirdly, appellant is admitting the fact that she is tenant only on the subject property. All these aspects of the record reveals that after registration of lease deed in favour of the Respondent No. 1, unless the same is not cancelled, the ownership claim of Respondent No. 1 on the subject property merits consideration. From perusal of the evidence on record particularly, affidavit of the Respondent No. 1, Para No. 14, it further appears that appellant was served with a legal notice on 24.03.2003, i.e. after 05.10.2002, when her husband Ishaq was died. Not only this, later on, appellant got the property leased in her favour. This reflects that by sending legal notice to the appellant, Respondent No. 1 claimed the on going rent from the appellant right from 24.03.2003. Record shows that sending of legal notice by the Respondent No. 1 to the appellant is also an admitted fact by the appellant and this finds support of para No. 10 of written statement filed by the appellant in rent case No. 155/ 2003. As per para-10 of appellant written statement, appellant stated that respondent falsely claimed in the legal notice. Nothing stated by appellant further in his pleadings that what legal remedy he availed or by Mst.Tahira against said notice of the appellant. Respondent No. 1 claim vide legal notice dated 24.03.2003 finds strong support of subsequent registered lease deed and deed of rectification which are available in record being Ex-AA/ 1 and A A/2. These gathered circumstances reveal that claim of the Respondent No. 1 on the subject property attend finality after registration of lease deed in her favour. This further makes it clear that after said process, appellant, who herself admitting to be tenant on the subject property, had to pay the further rent to the Respondent No. 1. On the aspect of knowledge about the Respondent No. 1 ownership, suffice to mention here that continuous demand of rent by Respondent No. 1 right from 24.03.2003, from the appellant is sufficient to presume that the matter remained in the knowledge of appellant. All this makes it clear that appellant had to pay the rent to the Respondent No. 1 without raising objection on her title on the property. Even otherwise, appellant is not supposed to raise ownership objection on the ground that she is not aggrieved of ownership title which is the matter between Atia Begum and Khatoon Bibi. Appellant being tenant is supposed to pay the rent to the owner having clear title.

1. The aforesaid discussion makes it clear that after admission of the appellant that she is tenant on the subject property, she has to pay the rent to the Respondent No. 1 who is legal owner of the same property by virtue of registered sale deed documents in her favour. However, from perusal of the rent application of the Respondent No. 1 it appears that in para-12 of her amended title application, she has claimed for recovery of rent from November, 2002 till today. This claim of the Respondent No. 1 cannot sustain in view of above judgment of Honourable Sindh High Court; therefore, the period of rent isrto be computed from the date of registered lease deed in favour of the Respondent No.

2. Since, it is an admitted position of record that for said period, appellant did not pay rent to the Respondent No. 1; therefore, it is clear default of non-payment of rent on the part of appellant. On this score, impugned order passed by learned Rent Controller does not suffer from illegality. There is no question of non-reading or misreading of evidence accordingly.”

3. As well it would be conducive to refer relevant point of determination of trial Court which is available at page 237 is reproduced as under:

“Heard both the sides and perused the record, after hearing and going through the material available on record this Court is of the view that this Court has framed the above issues in the light of order passed in C.P. No. S-638 of 2009, after recording evidence afresh of both the parties. This Court is of the view that during evidence of the applicant Mst. Attia Ishaq, she stated that she is the owner of the suit property and the alleged forged gift deed in favour of Mst. Tahira has no value. The property was leased out in her (applicant) favour in the year 2005 also but despite knowledge of ownership opponents failed to pay rent to her (applicant), hence become defaulter in payment of rent after the death of her husband Muhammad Ishaq. One of the opponent Shahid Iqbal (Exh.OO) during the cross-examination on fresh affidavit in evidence filed after the remand of this case, admitted that they got tenement on rent about 16 to 17 years back from Muhammad Ishaq under written tenancy agreement, hence admittedly the opponents are tenant but only the dispute is that opponent claimed her landlady to Mst. Tahira 2nd wife of Muhammad Ishaq, but the applicant also claimed herself as owner and landlady on the basis of lease deed also in her favour executed in the year 2005, executed after filing/ during pendency of this ejectment application in favour of the applicant first wife of Muhammad Ishaq. Admittedly there is no any document in favour of Muhammad Ishaq regarding ownership of case premises. During the cross-examination opponent admitted that Mst. Tahira filed civil Suit No. 1412 of 2006, in which the plaint was rejected under Order VII Rule 11, CPC and admittedly Mst. Khatoon Bibi (mother of the LRs) was the party to that suit. Mst. Khatoon Bibi is one of the opponent and legal heirs of Ashrafuddin. Admittedly Mst. Tahira filed suit for declaration and cancellation of lease bearing No. 1412 of 2006, but the plaint was rejected under Order VII Rule 11 CPC vide order dated 11.08.2008. Furthermore, admittedly Muhammad Ishaq was not the owner of case premises at time of executing alleged gift deed in favour of Mst. Tahira and secondly gift was allegedly executed on 07.04.1997, allegedly signed on the same date but on the 3rd page of alleged acceptance the attestation date has been shown as 08.04.1997, here question arises how the alleged gift deed signed on 07.04.1997 but attested on 08.04.1997, which clearly shows that the alleged gift deed was not signed before the attesting authority attested on next day of execution, hence the alleged gift has no value in eye of law and is also defective one. The opponent has knowledge about lease deed in the year 2005 in favour of the applicant and suit filed by Mst. Tahira was dismissed/disposed of by rejection of plaint, hence it is the duty of the tenant to pay rent to the applicant being lease holder/owner of the premises, the opponent even failed to deposit rent in the name of applicant after leasing the property in the year 2005 in favour of the applicant despite the knowledge.”

8. The question, so surfaced, needs to add that rent jurisdiction has got nothing to do with title or ownership but shall be competent only if there exists relationship of landlord and tenant. Equally such dispute, if any, would not be available to, be presented for ‘determination/adjudication because such adjudication/ determination is not within competence/jurisdiction of Rent hierarchy. Needless to add that if any observation in that regard is made by a Rent Controller or appellate authority thereof, the same would not cause any prejudice to competent of a Civil Court to decide such controversy. The decision of the competent Civil Court on any civil dispute shall prevail. Such view is within guidance, so provided in the case of Afzal Ahmed Qureshi v. Mursaleen 2001 SCMR 1434 wherein it is observed as:

“4. ... In absence of relationship of landlord and tenant between the parties the question of disputed title or ownership of the property in dispute is to be determined by a competent Civil Court as such controversies do not fall within the jurisdictional domain of the learned Rent Controller. It is well-settled by now that “the issue whether relationship of landlord and tenant exits between the parties is one of jurisdiction and should be determined first, in case its answer be in negative the Court loses scission over lis and must stay his hands forthwith”. PLD 1961 Lah. 60 (DB). There is no cavil to the proposition that non-establishment of relationship of landlady and tenant as envisaged by the Ordinance will not attract the provisions of the Ordinance. In this regard we are fortified by the dictum laid down in 1971 SCMR 82. We are conscious of the fact that ‘ownership has nothing to do with the position of landlord and payment of rent by tenant and receipt thereof by landlord is sufficient to establish relationship of landlord and tenant between the parties”.

The petitioner, once having admitted to be tenant, cannot deprive the respondent from possession of the property only which, too, on the ground that there is dispute between two wives of late Muhammad Ishaque (landlord), who was residing in that premises. Mst. Atia Ishaque was also residing in that premises at that time and still she is residing there. Moreover, there are concurrent findings of both Courts below wherein findings regarding question of relationship of landlord and tenant as well default have properly and legally been adjudicated. With regard to earlier order of this Court whereby case was remanded back with direction to decide the controversy with regard to gift deed and lease is concerned, suspension of lease deed by Katchi Abadi or any observation or declaration with regard to legal character of the property in favour of any party has no nexus with the rent jurisdiction. Accordingly, Petitioner cannot get benefit of the dispute with respondent and Mst.Tahira. The findings on ground of personal bona

fide also do not appear to be unjustified or unreasonable, thus, failure of the petitioner in pin-pointing any material illegalities in concurrent findings of both rent hierarchy is sufficient for dismissal of the instant petition. The case law relied upon by the learned counsel for the Petitioner is not helpful in the present case, hence, instant petition is dismissed along with pending applications. However, petitioner shall hand over peaceful possession of the demised premises to the Respondent No. 1 within two months from today.

(Y.A.) Petition dismissed

PLJ 2021 Karachi 53

Present: Salahuddin Panhwar, J.

Chaudhry MUHAMMAD YOUNUS and another--Petitioners

versus

MAQSOOD ALAM and another--Respondents

Constitional Petition. No S-974 and C.M.A No. 4339 of 2019, decided on 12.3.2020.

Constitution of Pakistan, 1973--

----Art. 199--Eviction petition--Allowed--Appeal--Dismissed--Locus standi of respondent--Commercial use of mosque--Concurrent findings--Allotment of plot--Management of mosque--Construction of shops--Direction for inquiry--Challenge to--There is no dispute with regard to construction raised by petitioners being part of management of Mosque and at present petitioners have dis-associated from management of mosque and running their clinic in some independent capacity, according to them, on basis of welfare--Admittedly shops were erected within boundary of mosque and these are not two shops only, according to counsel, mosque management has also converted a Madrasah into a school--Affairs of Respondent No. 1 are to run through management which includes right to rent out its shop (s) as well possession thereof--In writ of certiorari this Court has limited scope and has only to examine judgment of trial Court while keeping in view that whether same are result of misreading or non-reading of evidence or passed without lawful authority?--If answer is, prima facie, yes only then findings can be disturbed; merely possibility of another conclusion, however, is no ground for disturbing findings of lower rent authorities, including that of appellate Court which is final authority--Accordingly instant petition is dismissed however petitioners shall hand over possession of shops to management within eight months date of this order--Secretary Sindh Workers Welfare Board shall conduct enquiry with regard to allotment of plot whether same was already reserved for mosque and whether commercial use of that plot is legal and in accordance with law as well competence of authorizing office--In case enquiry opines that same is illegal, Sindh Workers Welfare Board shall take action in accordance with law and sue relevant party which, otherwise, was/ is duty of Board i.e to take initiatives for protection of its properties--Petition was dismissed. [Pp. 54 & 55] A, B, C & D

Mr. Fayyaz Ahmed, Advocate for Petitioners.

Mr. Khalique Dad Khan, Treasurer, Zeenat-ul-Islam Trust.

Date for Haring: 12.3.2020.

Order

Heard learned counsel for petitioner. He has taken plea that being part of the management of Mosque, many shops were constructed and shops in question were, however, raised in his personal capacity hence he is keeping both shops within compound of the mosque; that plot was allotted by the Secretary, Sindh Workers Welfare Board which letter is available at page 77 which categorically shows that no further construction should be made without prior permission of the Board. It is further contended that on the basis of photographs placed by the opponent, Rent Controller and the Appellate Court decided the issue against present petitioners. It is further contended that there is dispute between two management, one relates to two shops wherein one dispensary is being run by the present petitioners on welfare basis, hence impugned judgments are not in accordance with law.

2. While perusal of impugned judgments it reflects that plea of Section 92, CPC was also taken to dispute locus standi of the respondent with regard to eviction application. Perusal of judgments of both Courts below by keeping in juxtaposition with arguments, raised by learned counsel for petitioners, it is pertinent to mention here that there is no dispute with regard to construction raised by the petitioners being part of management of the Mosque and at present petitioners have dis-associated from the management of the mosque and running their clinic in some independent capacity, according to them, on the basis of welfare. This issue is raised by petitioners’ counsel that property relates to the Sindh Workers Welfare Board and entitlement authorized by the Assistant Engineer, Sindh Workers Welfare Board which, prima facie, was limited to raising of construction of mosque only, hence commercial use by the management of the mosque is completely illegal and even plea of such use for welfare is of any legal weight to disturb concurrent findings of two Courts below. Petitioners’ counsel is ready to hand over the possession to Sindh Workers Welfare Board for the interest of workers and not to the management of the mosque. The petitioners legally can’t take any advantage by making such statement as admittedly shops were erected within the boundary of the mosque and these are not two shops only, according to the counsel, mosque management has also converted a Madrasah into a school. The affairs of Respondent No. 1 are to run through management which includes right to rent out its shop (s) as well possession thereof. Since both Courts below have recorded findings that petitioner has remained tenant however there is admission that these shops were constructed while petitioners were part of the management hence dispute with regard to locus standi of the Respondent No. 1, suing the petitioner being management of Dar-ul-Uloom Usmania Jamia Masjid is without any force. Needless to mention that in writ of certiorari this Court has limited scope and has only to examine the judgment of the trial Court while keeping in view that whether same are result of misreading or non-reading of evidence or passed without lawful authority?. If answer is, prima facie, yes only then findings can be disturbed; merely possibility of another conclusion, however, is no ground for disturbing findings of lower rent authorities, including that of appellate Court which is final authority. Accordingly instant petition is dismissed however petitioners shall hand over possession of the shops to the management within eight months date of this order.

3. While parting this order it would be relevant to refer page 77 which is authorization by the Assistant Engineer, Sindh Workers Welfare Board with regard to allotment of the land. This letter creates smoke on the screen and doubt on allotment order because legally an Assistant Engineer is not competent to decide fate of property of the Board. Accordingly, Secretary Sindh Workers Welfare Board shall conduct enquiry with regard to allotment of the plot whether same was already reserved for mosque and whether commercial use of that plot is legal and in accordance with law as well competence of authorizing office. In case enquiry opines that same is illegal, Sindh Workers Welfare Board shall take action in accordance with law and sue relevant party which, otherwise, was/is duty of the Board i.e to take initiatives for protection of its properties. Office shall communicate this order to the Chairman and Secretary, Sindh Workers Welfare Board.

(Y.A.) Petition dismissed.

PLJ 2021 Karachi 56

Present: Salahuddin Panhwar, J.

TREND INTERNATIONAL through Proprietor--Appellant

versus

MUSTAFA REHMAN and another--Respondents

M.A. No 70 and C.M.A No. 9360 of 2018, decided on 25.11.2019.

Intellectual Property Organization of Pakistan Act, 2012 ( of 2012)--

----S. 19--Civil Procedure Code, (V of 1908), O.XLIII--Application for grant of mandatory injunction--Allowed--Ex-parte proceedings--Similar packing of two products--Opportunity of hearing--Administration of justice--Deprivation of rights of appellant--Challenge to--Normally mandatory injunction can’t be granted without hearing of other side because same surely operates against certain legal rights or obligations--It may well be added that such like mandatory injunction be not granted without allowing opportunity of hearing which, otherwise, is integral part of every proceedings within meaning of Article 10-A of Constitution, particularly when decision of such like proceedings is likely to effect upon rights or obligations--A departure, however, may be made only if such right is being used to delay/frustrate proceedings or exceptional circumstances so justifies which (exceptional circumstance must include irreparable loss--Status of both marks as registered is not disputed as well marketing thereof, therefore, it is always demand of safe administration of justice to provide an opportunity of hearing even while granting a mandatory injunction which (injunction) has been assailed to have deprived appellant of its rights which, too, without hearing--Appeal was disposed of.

[Pp. 57] A & B

M/s. Sultan Ahmed Shaikh and Salman Ahmed Shaikh, Advocates for Appellant.

Mirza Mehmood Baig, Advocate for Respondents.

Date for Haring: 25.11.2019.

Order

Admittedly, parties are not at dispute with regard to trademark registration, however, issue relates to the alike (similar) packing of two products. Order dated 04.10.2018 passed by Presiding Officer, Intellectual Property Tribunal reflects that same is ex-parte, as only Respondents were heard and after hearing them, the appellant was restrained from marketing of its products on the issue of resemblance in packing. It seems that through interim order the appellant has been deprived of marketing its products, which is duly registered; without there being any justification in this behalf and the said order merely rests on the arguments and prim a facie is without adjudication of such issue, which normally is the core issue in such like matters. Needless to mention that normally mandatory injunction can’t be granted without hearing of other side because same surely operates against certain legal rights or obligations. It may well be added that such like mandatory injunction be not granted without allowing opportunity of hearing which, otherwise, is integral part of every proceedings within meaning of Article 10-A of Constitution, particularly when the decision of such like proceedings is likely to effect upon rights or obligations. A departure, however, may be made only if such right is being used to delay/frustrate the proceedings or exceptional circumstances so justifies which (exceptional circumstances must include irreparable loss. Reliance in this regard may be made to the decision given by the Hon’ble Supreme Court of Pakistan in the case of Cantonment Board, Rawalpindi and another Vs. Muhammad Yaqoob and 49 others (1994 SCMR 2024), relevant paragraph whereof is reproduced as under:

“Be that as it may, the learned High Court appears to have acted in, has in the issuance of ad interim mandatory injunction without hearing the opposite side and considering the legal aspect of the case. The impugned order is; therefore, not sustainable. We accordingly, convert this petition into appeal and by allowing the same, set aside the impugned order of the High Court. However, it is directed that the main revision petition may be disposed of as early as possible preferably within one month.”

2. In the instant matter status of both marks as registered is not disputed as well marketing thereof, therefore, it is always demand of safe administration of justice to provide an opportunity of hearing even while granting a mandatory injunction which (injunction) has been assailed to have deprived appellant of its rights which, too, without hearing. Accordingly, impugned order is found to be unjustified and ab-initio void, same is set aside and application for injunction be deemed to be pending which, the tribunal shall decide afresh within one month after hearing the parties. The parties shall ensure their presences before tribunal. The instant appeal stands disposed of alongwith listed application.

(Y.A.) Appeal disposed of

PLJ 2021 Karachi 62

Present: Salahuddin Panhwar, J.

M/s. BROTHERS INDUSTRIES through Partner--Appellant

versus

CONTROLLER OF PATENTS and another--Respondents

M.A. No. S-05 of 2012, decided on 13.2.2020.

Patent Ordinance, 2000--

----Ss. 23 & 69(3)--Patent Rules, 2003, R. 17--Application for grant of patent--Accepted--Application was advertised for purposes of filing of opposition by any person against grant of patent--Refused--Time-barred--Expiry of prescribed period--Ignorance from a particular gazette--Challenge to--Plea of counsel to effect that effective date for filing opposition would be that of making it available at Patent Officer is entirely misconceived--One can’t take advantage of his own ignorance from a particular gazette because every gazette is meant to make effective from date of its publication which (date of publication), otherwise, is meant for purpose of taking benefit thereof or to face consequence of any inaction, if required to be taken with reference to such gazette--Application was dismissed.

[P. 65] A

Ms. Sara Shaikh, Advocate for Appellant.

Mr. Abad ul Hasnain, Advocate for Respondents.

Date of hearing: 13.2.2020.

Judgment

Appellant has challenged the order dated 26.09.2011 and order-in-original, the detailed order dated 2nd, November 2011, (the impugned order) passed by learned Controller of Patent, Karachi wherein the Controller refused the opposition filed by the appellant against the Respondent No. 2 on the ground that the opposition was time barred since it was filed after the expiry of prescribed period of four months commencing from the date of publication of official gazette.

1. Precisely relevant facts are that that Respondent No. 2 filed application for the grant of patent before the Respondent No. 1, which application after passing through the due process of examination was accepted and as the Patents Ordinance, 2000 (the Ordinance) requires, in terms of Section 23 and under Rule 17 of the Patents Rules, 2003, the application was advertised for the purposes of filing of opposition by any person against the grant of the said patent.

2. It is pertinent to mention that notifications related to patents are advertised in Part-V of the Federal Government Gazette, which are published on weekly basis, in terms of which information with regards filing, acceptance and sealing of patents, etc. are advertised. Worth noting are the provisions of Section 2(e) of the Ordinance which defines “date of advertisement” to mean the date on which the relevant Part-V of the Official Gazette is actually made available to the public.

3. In the instant case, application was advertised in the official Gazette on 16.03.2011, therefore in the normal course, the statutory period of filing opposition expired after four months’ period. The case of the Appellant is that the date from which the period of four months would commence is the date on which the Gazette was made available at the Patent Office rather than the date on which Gazette was published (or made available to public at large), he therefore, contended that the opposition filed on 30.08.2011 (after the statutory limit of four months) was still within time since the said Gazette was only received at the Patent Office in the month of July 2011, wherefrom he took notice of the said application and filed opposition. It is further argued that gazette of Pakistan Part-V was delayed at Printing Corporation of Pakistan, therefore, dismissal of the Notice of opposition filed under Section 23 of the Patent Ordinance, 2000, by the Respondent No. 1 being barred by 45 days is against the settled principle of law.

4. The question, involved in the petition, can well be formed into the proposition as:

“Whether effective date for remedy, provided by Section 23 of the Patents Ordinance, would be that when it (Gazette) was made available at the Patent Office or the one when it (Gazette) was published (with specific date of its publication)?”

1. Since, the above proposition has already been attended by this Court in the case of PakistanPharmaceutical Manufacturers Associate (PPMA) through Authorized Signatory vs. The Controller of Patents and another [2017 CLD 427 (Sindh)], therefore, I would prefer referring relevant portion of the judgment. The relevant portion thereof reads as:

“The point of determination thus can now be summarized as to whether the notifications advertised in the official Gazette (Part- V) dated 29.09.2010 would take effect from the date of the said Gazette or from 07.03.2011 (or any other date) when the Appellant acquired knowledge of the Gazette after having visited the Patent Office?

In this regard the rule of thumb and consistency mandates that a Gazetted notification bearing a particular date be presumed to be published on the date indicated thereon unless proved otherwise. If by leading evidence it can be shown by any interested party that the Gazette was actually published (or made available to public) on a date subsequent to the date indicated on the Gazette, then that subsequent date would be taken as the date of actual publication (i.e. the act of making it public) which will be rendered as the relevant date from which the Gazette would come into force. This view finds support from the case reported as A.M. Sheikh v. National Refinery Limited (1990 CLC 479) where the Court while contemplating on the issue regarding the specified date from which a notification was to operate held that if a notification was to operate commencing from a specified date, the period could not be computed from any date other than which had been specified in the notification itself, however, if the notification had been silent as to the date of the commencement of the period, the same would be reckoned from the date when the notification was made available to the public and not from the date of publication of notification in the Gazette. Similar dictum is also laid down by the Indian Supreme Court in the case of Union of India v. Ganesh Das Bhoraj (2000 (116) ELT 431) wherein, the Court specifically ruled that a notification would come into operation as soon as it is published in the gazette i.e. the date of publication of the gazette and no further publication is contemplated. Similar are the findings given in the case of Metro Exporters (P) Ltd. v. Collector of Customs (1997 (94) ELT 427 Tri Del) where it was held that the normal presumption is that the date printed on the Gazette Notification is the date of its publication unless proved otherwise, and therefore it is from this date that it becomes effective and comes in force irrespective of whether (or if and when) a particular person came to know about it or could obtain it.

7. In above judgment, it stands quite clear that normally effective date would be that when a notification is published in the gazette and not the one when it is received in relevant office. Therefore, the plea of the counsel to the effect that effective date for filing opposition would be that of making it available at the Patent Officer is entirely misconceived. One can’t take advantage of his own ignorance from a particular gazette because every gazette is meant to make effective from the date of its publication which (date of publication), otherwise, is meant for purpose of taking benefit thereof or to face consequence of any inaction, if required to be taken with reference to such gazette.

In result of above, I do not find any illegality in the impugned order. Accordingly, by short dated 13.02.2020 instant application was dismissed being not tenable, these are the reasons for that order.

(Y.A.) Application dismissed

PLJ 2021 Karachi 62

Present: Salahuddin Panhwar, J.

M/s. BROTHERS INDUSTRIES through Partner--Appellant

versus

CONTROLLER OF PATENTS and another--Respondents

M.A. No. S-05 of 2012, decided on 13.2.2020.

Patent Ordinance, 2000--

----Ss. 23 & 69(3)--Patent Rules, 2003, R. 17--Application for grant of patent--Accepted--Application was advertised for purposes of filing of opposition by any person against grant of patent--Refused--Time-barred--Expiry of prescribed period--Ignorance from a particular gazette--Challenge to--Plea of counsel to effect that effective date for filing opposition would be that of making it available at Patent Officer is entirely misconceived--One can’t take advantage of his own ignorance from a particular gazette because every gazette is meant to make effective from date of its publication which (date of publication), otherwise, is meant for purpose of taking benefit thereof or to face consequence of any inaction, if required to be taken with reference to such gazette--Application was dismissed.

[P. 65] A

Ms. Sara Shaikh, Advocate for Appellant.

Mr. Abad ul Hasnain, Advocate for Respondents.

Date of hearing: 13.2.2020.

Judgment

Appellant has challenged the order dated 26.09.2011 and order-in-original, the detailed order dated 2nd, November 2011, (the impugned order) passed by learned Controller of Patent, Karachi wherein the Controller refused the opposition filed by the appellant against the Respondent No. 2 on the ground that the opposition was time barred since it was filed after the expiry of prescribed period of four months commencing from the date of publication of official gazette.

1. Precisely relevant facts are that that Respondent No. 2 filed application for the grant of patent before the Respondent No. 1, which application after passing through the due process of examination was accepted and as the Patents Ordinance, 2000 (the Ordinance) requires, in terms of Section 23 and under Rule 17 of the Patents Rules, 2003, the application was advertised for the purposes of filing of opposition by any person against the grant of the said patent.

2. It is pertinent to mention that notifications related to patents are advertised in Part-V of the Federal Government Gazette, which are published on weekly basis, in terms of which information with regards filing, acceptance and sealing of patents, etc. are advertised. Worth noting are the provisions of Section 2(e) of the Ordinance which defines “date of advertisement” to mean the date on which the relevant Part-V of the Official Gazette is actually made available to the public.

3. In the instant case, application was advertised in the official Gazette on 16.03.2011, therefore in the normal course, the statutory period of filing opposition expired after four months’ period. The case of the Appellant is that the date from which the period of four months would commence is the date on which the Gazette was made available at the Patent Office rather than the date on which Gazette was published (or made available to public at large), he therefore, contended that the opposition filed on 30.08.2011 (after the statutory limit of four months) was still within time since the said Gazette was only received at the Patent Office in the month of July 2011, wherefrom he took notice of the said application and filed opposition. It is further argued that gazette of Pakistan Part-V was delayed at Printing Corporation of Pakistan, therefore, dismissal of the Notice of opposition filed under Section 23 of the Patent Ordinance, 2000, by the Respondent No. 1 being barred by 45 days is against the settled principle of law.

4. The question, involved in the petition, can well be formed into the proposition as:

“Whether effective date for remedy, provided by Section 23 of the Patents Ordinance, would be that when it (Gazette) was made available at the Patent Office or the one when it (Gazette) was published (with specific date of its publication)?”

1. Since, the above proposition has already been attended by this Court in the case of PakistanPharmaceutical Manufacturers Associate (PPMA) through Authorized Signatory vs. The Controller of Patents and another [2017 CLD 427 (Sindh)], therefore, I would prefer referring relevant portion of the judgment. The relevant portion thereof reads as:

“The point of determination thus can now be summarized as to whether the notifications advertised in the official Gazette (Part- V) dated 29.09.2010 would take effect from the date of the said Gazette or from 07.03.2011 (or any other date) when the Appellant acquired knowledge of the Gazette after having visited the Patent Office?

In this regard the rule of thumb and consistency mandates that a Gazetted notification bearing a particular date be presumed to be published on the date indicated thereon unless proved otherwise. If by leading evidence it can be shown by any interested party that the Gazette was actually published (or made available to public) on a date subsequent to the date indicated on the Gazette, then that subsequent date would be taken as the date of actual publication (i.e. the act of making it public) which will be rendered as the relevant date from which the Gazette would come into force. This view finds support from the case reported as A.M. Sheikh v. National Refinery Limited (1990 CLC 479) where the Court while contemplating on the issue regarding the specified date from which a notification was to operate held that if a notification was to operate commencing from a specified date, the period could not be computed from any date other than which had been specified in the notification itself, however, if the notification had been silent as to the date of the commencement of the period, the same would be reckoned from the date when the notification was made available to the public and not from the date of publication of notification in the Gazette. Similar dictum is also laid down by the Indian Supreme Court in the case of Union of India v. Ganesh Das Bhoraj (2000 (116) ELT 431) wherein, the Court specifically ruled that a notification would come into operation as soon as it is published in the gazette i.e. the date of publication of the gazette and no further publication is contemplated. Similar are the findings given in the case of Metro Exporters (P) Ltd. v. Collector of Customs (1997 (94) ELT 427 Tri Del) where it was held that the normal presumption is that the date printed on the Gazette Notification is the date of its publication unless proved otherwise, and therefore it is from this date that it becomes effective and comes in force irrespective of whether (or if and when) a particular person came to know about it or could obtain it.

7. In above judgment, it stands quite clear that normally effective date would be that when a notification is published in the gazette and not the one when it is received in relevant office. Therefore, the plea of the counsel to the effect that effective date for filing opposition would be that of making it available at the Patent Officer is entirely misconceived. One can’t take advantage of his own ignorance from a particular gazette because every gazette is meant to make effective from the date of its publication which (date of publication), otherwise, is meant for purpose of taking benefit thereof or to face consequence of any inaction, if required to be taken with reference to such gazette.

In result of above, I do not find any illegality in the impugned order. Accordingly, by short dated 13.02.2020 instant application was dismissed being not tenable, these are the reasons for that order.

(Y.A.) Application dismissed

PLJ 2021 Karachi 66 (DB)

Present: Muhammad Ali Mazhar and Agha Faisal, JJ.

MUHAMMAD AHMED SIDDIQUI and others--Appellants

versus

ABDUL ABID ADVOCATE and others--Respondents

1st Appeal Nos. 76 & 77 of 2018, decided on 30.7.2020.

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

----S. 96, O.VII R. II, O.XXXVII Rr. 1, 2--Suit for damages and compensation--Partially decreed--Summary suit--Mutual agreement for investment--Default in payment--Application for rejection of plaint--Dismissed--Fundamental question of jurisdiction--Maintainability--Obligatory duty of Court--Application of correct law--Challenge to--It is quite strange to note that in order granting leave to defend and in order passed on application moved by defendants under Order VII Rule 11 C.P.C. for rejection of plaint, trial Court in both orders failed to consider and decide fundamental question of jurisdiction and maintainability of suit under summary chapter which was also essential as prerequisite to mull over while admitting suit--Foremost oversight and misstep which trial Court failed to countenance that how Iqrarnama could be considered negotiable instrument--In counter Appeal No. 77/2018, appellant who was plaintiff in suit (Mr. Abid Ali Advocate) has himself entreated for modification/setting aside impugned judgment & decree and grant of his claim of damages on account of causing loss of health, loss of valuable time, mental torture & agony and financial loss to him--It is quite apparent from tenor of law that these claims could not be decided in summary suit and if decree granted in sum of Rs. 600,000/- is taken into consideration based on Iqrarnama that too does not fall within parameter of Order XXXVII Rules 1 & 2 C.P.C--Though trial Court asked plaintiff to satisfy before admission but suit was admitted subject to all just exceptions but these exceptions were never taken into consideration--Leave to defend was allowed with security/surety and application under Order VII Rule 11 C.P.C. was also dismissed without adverting to legal pleas raised in application--Iqrarnama neither can be construed or decipherable as a promissory note nor it is covered in sphere of any other negotiable instrument therefore at very beginning, trial Court could have returned plaint with directions to institute same in an ordinary Court rather than admitting suit under Order XXXVII C.P.C--Failing to act strictly in accordance with law and inattentiveness of trial Court, considerable time of parties elapsed and fizzled out--Trial Court in this case has tried suit in a summary chapter and not as an ordinary suit and for same reasons disallowed other reliefs which were never quit or relinquished by plaintiff--Impugned judgment cannot be protected as a judgment in an ordinary suit--It is clear that plaintiff did not claim any special damages but damages in general--Mental shock, agony and torture imply a state of mind--Such state of mind can be proved only by a positive assertion of one who experiences same--It is well settled exposition of law that it is obligatory duty of Judge to apply correct law to a lis and not of litigant to point out law applicable--Primary duty to do justice and to apply correct law to facts of a case is exclusive duty of a Judge--Appeal was allowed.

[Pp. 70, 71, 74 & 77] A, B, C, D, E & F

2020 YLR 578 and PLD 1957 (W.P.) Karachi 445 ref.

Mr. Muhammad Shahid Shah, Advocate for Appellants (in I.A. No. 76/2018 & for Respondents Nos. 1 & 2 in I.A. No. 77/2018).

Mr. Abdul Abid, Advocate for Appellant in Person (in I.A. No. 77/2018 & Respondent No. 1 in I.A. No. 76/2018).

Dates of hearing: 20.8.2019 & 16.3.2020.

Order

Muhammad Ali Mazhar, J.--The appellants in I.A. No. 76/2018 have brought this appeal to challenge the Judgment and Decree dated 31-05-2018 passed by the learned VIth Additional Session Judge, Karachi, Central in Summary Suit No. 27/2015 whereas in cross appeal i.e I.A. No. 77/2018, the appellant has also challenged the same judgment and decree with the prayer to modify/set-aside the impugned Judgment and Decree and direct the respondents jointly and or severally to pay principle amount and profit in view of the agreement dated 12-02-2012 and also pay damages and compensation to the appellant. Both the parties agreed to argue the main appeal at katcha peshi stage. The R & P was called from trial Court and parties had extensively argued their appeals.

1. The evanescent facts of the case are as follows:

The appellant Abid Ali Advocate had filed a Summary Suit No. 27/2015 against Muhammad Ahmed Siddiqui and Mashood Ahmed Siddiqui under Order XXXVII, Rules 1 & 2, C.P.C. on the plea that both the defendants approached him for investing Rs. 6,00,000/- in cement business and assured to return on principle amount 10% profit per month. The plaintiff paid this amount, however after few days, the Defendant No. 2 informed the plaintiff that they cannot pay 10% profit per month, but they can pay 5% on borrowed amount. The plaintiff many times approached and requested the defendants to return his borrowed/loan amount of Rs. 6,00,000/- but it was not paid by the defendants. The plaintiff with his colleague advocate Mr. Zafar Alam went to the house of Defendant No. 1 on 21.4.2013 and requested for executing an indenture of “Iqrarnama” for refund/repayment of said loan amount on which the Defendant No. 1 (Muhammad Ahmed) in his own handwriting executed Iqrarnama in presence of the Defendant No. 2 (Mashood Ahmed Siddiqui) according to which the Defendant No. 1 took responsibility and gave the schedule of repayment of amount and agreed to pay amount in installments of one lac per month for which both the defendants put their respective signatures on such “iqrarnama”. Due to nonpayment as per terms of iqrarnama, the plaintiff sent a legal notice and then filed aforesaid summary suit with the following prayers:

“1. To direct the defendants jointly and or severally to pay Rs. 14,000,000/- (Fourteen Million) as damages with principle amount plus 10% profits per month on 1 lac as they promised according to the agreement from dated 12.02.2012 when defendants took amount from the plaintiff and with the compensation to the plaintiff pecuniary and non-pecuniary lump sum with the date of filing of this suit till the realization of decree on account of causing.

a. Loss of health.

b. Loss of valuable time.

c. Damages for mental torture.

d. Damages for mental agony/shock and extreme physical pain.

e. Financial loss.

1. To grant cost of the whole litigations.

2. To grant any other better relief or relief(s)………..”

Both the defendants filed leave to defend application and were allowed to defend the suit conditionally on furnishing surety/security equivalent to the principal amount. The trail Court decreed the suit in the sum of Rs. 6,00,000/- which has been challenged vice versa, the defendants have assailed the judgment on the plea that suit was not maintainable under the summary chapter (Order XXXVII, C.P.C) whereas the plaintiff has claimed the damages including interest/markup along with other relief(s) which he jot down in his summary suit instituted in the Court of Additional District and Sessions Judge for trail.

1. The learned counsel for the appellants in I.A. No. 76 of 2018, argued that judgment and decree is contrary to the law. It was further argued that iqrarnama does not come within definition of the Negotiable Instruments. The learned trial Court had wrongly assumed the jurisdiction and despite taking objection that the suit was not triable under the summary chapter which is only meant for the claims arising out of Negotiable Instruments Act, this crucial objection was ignored. He further argued that the trial Court failed to consider the law and evidence and passed the judgment in hasty manner which is liable to be set aside.

2. The appellant in person in I.A. No. 77 of 2018 argued that the impugned judgment and decree to the extent of non-allowing his full claim is erroneous. The learned trial Court committed error while refusing the appellant’s full claim against the respondents. The author of iqrarnama admitted that his brother Respondent No. 2 took Rs. 6,00,000/- and promised to pay profit. It was further argued that overwhelming evidence was available on record to grant full claim of the plaintiff lodged in the summary suit but the trial Court only decreed the suit for principal amount. Iqrarnama and reply of the Respondent No. 1 fully established that it was a valid agreement, therefore the respondents are bound to comply with the conditions stipulated in the agreement. It was further argued that under Section 34, C.P.C, ample discretion was available to the trial Court to award interest. The trial Court has erroneously declined other claims also including damages and compensation in the decree.

3. Heard the arguments. The skeleton and framework of the plaint unequivocally demonstrates that the plaintiff had in fact filed a suit for damages in the sum of Rs. 14,00,000/- with principle amount due to alleged default in making payment by dint of agreement dated 12.02.2012 but the suit was instituted and presented under Order XXXVII, C.P.C. The seclusion bordered by a summary suit and an ordinary suit is that in a summary suit, the defendant is not entitled as a right to defend the suit as in ordinary suit but he has to submit an application for leave to defend. If no leave is granted by the Court then the plaintiff is entitled to a decree. By and large, summary suits are perceptibly easy-going to establish for the plaintiff and somewhat strenuous and resilient for the defendant to defend than ordinary suits. Notionally, a summary suit is acknowledged as a quick remedy under Order XXXVII, C.P.C with clear statement of the plaintiff that no relief has been claimed beyond the realm and sphere of summary chapter set down under Order XXXVII of C.P.C. The Court may not decline the permission to defend unless it considers that the disclosure by the defendant does not show any substantial defence, however the Court may grant conditional or unconditional leave to defend keeping in mind the facts and circumstances of each case independently.

4. Undeniably the suit was filed under Order XXXVII Rules 1 & 2, C.P.C with several prayers including damages as a consequence of alleged loss of health, valuable time, mental torture and agony and financial losses. It is also translucent that the case was all- encompassing converged on Iqrarnama coupled with some reliefs. Meaning of the word Indenture in Urdu language is “اقرار نامہ”. A mutual agreement in writing between two or more parties. The R&P shows that before admission of the suit by the trial Court, the office had raised objection for non-filing of cheque and memorandum of bank for the amount which the plaintiff claimed and non-filing of negotiable instrument. Despite these objections, the suit was admitted on 11.09.2015 subject to all just exceptions. The leave to defend application was filed in which specific objection was taken that suit does not fall within the summary chapter. The leave to defend application was decided by the trial Court vide order dated 08.02.2016. It is translucent that the crucial objection raised to the maintainability of the summary suit was not decided by the trial Court rather a conditional leave to defend was allowed subject to deposit of surety in the sum of Rs. 600,000/- to the Nazir of the trial Court within one month which was furnished as reflected from the trial Court order dated 23.02.2013.

7. On 16.04.2016 an application under Order VII Rule 11, C.P.C. was filed by the defendants in which it was specifically pleaded that the suit does not fall within the ambit of summary suit. This application was decided by the trial Court vide order dated 30.09.2016 but again in this order instead of deciding the nucleus of the matter as to whether the suit was maintainable under the provisions of Order XXXVII, C.P.C. or not, the trial Court again relied on Iqramama without considering whether the Iqrarnama can be considered negotiable instrument for which the suit was filed along with other claims including damages on account of mental agony. It is quite strange to note that in the order granting leave to defend and in the order passed on the application moved by the defendants under Order VII Rule 11, C.P.C. for the rejection of plaint, the trial Court in both orders failed to consider and decide the fundamental question of jurisdiction and maintainability of the suit under summary chapter which was also essential as prerequisite to mull over while admitting the suit.

8. In the judgment authored by one of us (Muhammad Ali Mazhar, J) in First Appeal No. 78 of 2017 reported as 2019 CLD 1241 (Mohammad Moazam Khan versus Mohammad Iqbal and another), we held as under:

1. …. The Negotiable Instruments Act is intended to lay down the whole law regarding cheques, bills of exchange and promissory notes. The negotiability can be attached to documents by mercantile usage. The Negotiable Instruments Act is a statute dealing with a particular form of contract and the law laid down for special cases must always overrule provisions of general character. According to interpretation clause of the Negotiable Instruments Act, “issue” means the first delivery of a promissory note, bill of exchange or cheque complete in form to a person who takes it as a holder; “delivery” means transfer of possession, actual or constructive, from one person to another; “bearer” means a person who by negotiation comes into possession of a negotiable instrument, which is payable to bearer; and “banker” means a person transacting the business of accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise and withdrawable by cheque, draft, order or otherwise) and includes any Post Office Savings Bank. According to Section 4 of the Negotiable Instruments Act, a promissory note is an instrument in writing (not being a bank-note or a currency note) containing an unconditional undertaking, signed by the maker, to pay on demand or at a fixed or determinable future time a certain sum of money only to, or to the order of, a certain person, or the bearer of the instrument. An Instrument which fulfils all the conditions mentioned in Section 4 of the Negotiable Instruments Act would be termed as promissory note. To determine the nature of an instrument where there is a promise to pay, the best way is to see what is the intention of the parties and what is the instrument in the common acceptance of men of business or persons among whom it is commonly used. Ordinarily in order to amount to a promissory note, an instrument must simply contain a promise to pay and nothing else. The true import of the words ‘on demand’ is that the debt is due and payable immediately. The endorsement does not mean that it is not payable immediately or without any demand.

2. A negotiable instrument is a document guaranteeing the payment of a specific amount of money, either on demand, or at a set time, with the payer usually named on the document. It can serve to convey value constituting at least part of the performance of a contract, albeit perhaps not obvious in contract formation, in terms inherent in and arising from the requisite offer and acceptance and conveyance of consideration. The instrument itself is understood as memorializing the right for, and power to demand, payment, and an obligation for payment evidenced by the instrument itself with possession as a holder in due course being the touchstone for the right to, and power to demand payment. A promissory note typically contains all the terms pertaining to the indebtedness, such as the principal amount, interest rate, maturity date, date and place of issuance, and issuer’s signature. The difference between a promissory note and a bill of exchange is that the latter is transferable and can bind one party to pay a third party that was not involved in its creation. Bank notes are common forms of promissory notes. Bills of exchange, orders a debtor to pay a particular amount within a given period of time issued by the creditor. The promissory note is issued by the debtor and is a promise to pay a particular amount of money in a given period. A bill of exchange must clearly detail the amount of money, the date, and the parties involved (including the drawer and drawee). The following are some points of differences between promissory notes and bills of exchange, a) A promissory note generally involves two parties, i.e. a maker (debtor) and a payer (creditor). On the other hand, bills of exchange include a drawer, a drawee and a payee; b) As the bills of exchange introduction above shows, a bill orders the drawee to pay as per the drawer’s directions. A promissory note, however, is not an order but a promise to pay; c) The liability of maker of a promissory note is absolute, while that of the drawer of a bill is conditional; d) Notes cannot be payable to their makers, while the drawer and the payee in bills can be the same person. So far as the niceties of the cheques are concerned, according to Section 6 of the Negotiable Instruments Act, a cheque is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand. A cheque is a peculiar sort of instrument in many ways resembling a bill of exchange, but entirely different. A cheque is not intended for circulation but it is given for immediate payment and not entitled to days of grace and thus it is strictly speaking an order upon a debtor by a creditor to pay to a third person the whole or part of a debt, yet, in the ordinary understanding of persons, it is not so considered. A cheque whether payable to bearer or to order is not rendered void by post-dating it and is admissible in evidence in an action brought after the date of the cheque by the holder although he took with knowledge of the post-dating.

3. Neither the Court can assume the jurisdiction not conferred by law nor the jurisdiction can be assumed or entertained by consent of parties but the doctrine of assuming the jurisdiction by the Courts is strictly based on the law conferring that particular jurisdiction. The niceties or minutiae of the jurisdiction under the summary chapter is altogether different than the jurisdiction of an ordinary Court, therefore, it is incumbent upon every plaintiff while insetting the plaint, his claim should have been within such realm and sphere. Order XXXVII, C.P.C applies only to the High Court and to the district Courts and to any other civil Court as specifically notified in this behalf by the High Court. The C.P.C is consolidatory and procedural law nevertheless it encompasses substantive stipulations as branch of law for dispensing the process of litigation. According to Section 9 C.P.C, the Courts have jurisdiction to try all suits of civil nature except suits of which their cognizance is expressly or impliedly barred. The word and expression jurisdiction refers to the legal authority to administer justice in accordance with the methods and avenues provided subject to the limitation imposed by law. Whenever any jurisdiction is conferred to any Court of law subject to a number of prerequisites, then such prerequisites should be complied with. In this case, the defendant had raised the objection thrice to the jurisdiction so it was the judicious and commonsensical responsibility of the trial Court to decide the objection before moving ahead and if reached to the conclusion that it had no jurisdiction to entertain or try the suit, the plaint could have been returned back under Order VII Rule 10, C.P.C.

4. The letters of law make it obvious without any ambiguity that under Order XXXVII Rule 1, C.P.C, the suit can be entertained to deal the cases based on negotiable instruments which triggers on presentation of plaint and in case defendant fails to appear or defend and in default, the allegation in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. The present suit is not based on any negotiable instrument nor the plaintiff has demonstrated that any cheque which was issued by the defendant in favour of the plaintiff was dishonored rather the plaintiff has framed the suit on the premise that a sum of Rs. 200,000/- was paid to the defendant through bearer cheque which he got encashed in his presence but he austerely hinged on the Iqramama in which the defendants agreed to pay off certain amounts with markup/interest but due to noncompliance of agreement, the suit was instituted under summary chapter. The trial Court framed seven issues and the suit was decreed in the sum of Rs. 600,000/- on the notion that this amount was agreed to be paid through Iqrarnama. So far as the claim of damages is concerned, the trial courj held that the claim of damages cannot be entertained in the summary suit.

11. The foremost oversight and misstep which trial Court failed to countenance that how the Iqrarnama could be considered negotiable instrument. In the counter Appeal No. 77/2018, the appellant who was plaintiff in suit (Mr. Abid Ali Advocate) has himself entreated for modification/setting aside the impugned judgment and decree and grant of his claim of damages on account of causing loss of health, loss of valuable time, mental torture and agony and financial loss to him. It is quite apparent from the tenor of law that these claims could not be decided in the summary suit and if the decree granted in the sum of Rs. 600,000/- is taken into consideration based on the Iqrarnama that too does not fall within the parameter of Order XXXVII Rules 1 & 2, C.P.C. Though the trial Court asked the plaintiff to satisfy before admission but the suit was admitted subject to all just exceptions but these exceptions were never taken into consideration. The leave to defend was allowed with security/surety and application under Order VII Rule 11, C.P.C. was also dismissed without adverting to the legal pleas raised in the application.

12. Seeing the ground reality that the Iqrarnama neither can be construed or decipherable as a promissory note nor it is covered in the sphere of any other negotiable instrument therefore at the very beginning, the trial Court could have returned the plaint with the directions to institute the same in an ordinary Court rather than admitting the suit under Order XXXVII, C.P.C. Failing to act strictly in accordance with law and inattentiveness of the trial Court, considerable time of the parties elapsed and fizzled out. The suit filed in the year 2015 is found to have been emaciated, unproductive and vexatious exercise of jurisdiction. All claims lodged by the plaintiff in the plaint including the claim of damages could have been considered after framing proper issues and adducing evidence by the parties and in case of disagreement of the decree by any party, the appeal could have been filed before the District Judge. But in this case direct exercise of jurisdiction inadequately by the trial Court in summary chapter has also deprived the parties at least one forum of appeal. Due to admission of suit wrongly in summary chapter, the appeals have been filed in the High Court. There may be another aspect that Court has to do the substantial justice between the parties while avoiding technicalities but here the question of jurisdiction is involved which is quite essential and important for every Court to contemplate before entertaining the lis and exercising the jurisdiction. Though in the spirit of Order XXXVII, Rule 7 C.P.C. where the leave to defend is allowed conditionally or unconditionally or where the defendant fulfills the condition imposed, the procedure in suits shall be the same as procedure in suit instituted in the ordinary manner which in fact refers to the filing of the written statement, framing of issues, leading evidence by the parties and thereafter, the judgment shall be announced but this no way means that the suit should be allowed to be admitted and entertained under wrong notion, forum or without jurisdiction. No notification has been issued by this High Court, whereby, the jurisdiction has been conferred under Order XXXVII, C.P.C to any civil Court but the said jurisdiction is till confined and limited to be exercised by the High Court and District Courts only. In the case of Sheikh Abdul Majid v. Syed Akthar Hussain Zaidi (PLD 1988 SC 124), the facts of the case depicts that the revision was filed by the respondent in the Lahore High Court on the question of jurisdiction of a Civil Judge in Lahore to avail the procedure prescribed under Order XXXVII, C.P.C. The learned Judge in the High Court came to the conclusion that due to the provisions of Central Laws (Statute Reforms) (Ordinance XXI of 1960), such a power was not available to the Civil Judge as amendments introduced by the Lahore High Court stood revoked. As regards the other question whether the Court seized of the matter should be asked to proceed with the trial of the suit as an ordinary one or return the plaint. The learned Judge in the revisional jurisdiction held that Order XXXVII of the Code did not apply to the learned trial Court of the Civil Judge, Lahore and consequently it had no jurisdiction to try the suit. It was further held .that the impugned order granting leave to the respondent was without jurisdiction and the learned Judge returned the plaint to be presented to the Court in which the suit should have been instituted. When this order was challenged in the apex Court, the honourable Supreme Court held that amendment introduced by clause (e) of the High Court of Lahore remains intact and has been intentionally kept intact. It was further held that amendments introduced by the High Court only identifies the Courts where resort can be made by Order XXXVII, C.P.C. for the purpose of trial of a suit of particular category. The apex Court allowed the appeal, set aside the judgment of the learned Lahore High Court and remanded the case for trial by the Civil Judge in accordance with the law. Here in our sight and understanding, the most crucial and distinguishing fact is that the above judgment was based on the powers confer on by the learned Lahore High Court to try the case by the Civil Court under Order XXXVII, C.P.C. which otherwise means that the originally the said suit was instituted in the civil Court notwithstanding it was filed in the summary chapter or as ordinary suit. The apex Court directed the civil Court to decide the case in accordance with law which had otherwise jurisdiction in the matter as an ordinary suit but here the suit was originally filed before the learned District Judge under misconception being a summary suit so the argument advanced by Mr. Abid Ali Advocate cannot be sustained that though the suit was not in summary chapter which he candidly admitted despite that it could have been tried and decided by the District Judge as an ordinary suit and all reliefs claimed by him could have been granted which is not correct exposition of law in our farsightedness.

1. In the case of Muhammad Abdullah Sufi v. Messrs. Muhammad Bux & Sons (PLD 1957 (W.P) Karachi 445), the facts were that the plaintiff had filed a suit for the recovery of Rs. 2,236/-based on a cheque drawn on Mercantile Cooperative Bank by the defendant in his favour. The suit was filed under Order XXXVII C.P.C and was admitted on 04.09.1956. During the pendency, the plaintiff realized that the subordinate judge at Karachi had no power to issue summons under Order XXXVII Rules 1 and 2, C.P.C. so he filed an application for amendment in the plaint. The application was rejected on the ground that subordinate judge had no jurisdiction to hear the suit under Order XXXVII, C.P.C. The learned Judge of this Court accepted the revision application on 17.04.1957 and set aside the order of the learned subordinate judge with the directions to entertain the suit and try it in the ordinary way no matter even if he does not possess the power under section XXXVII, C.P.C. Yet again what we have comprehended and grasped that the learned Judge in the cited dictum issued directions to try the suit in an ordinary manner merely for the reason that if the Court had no jurisdiction under Order XXXVII, C.P.C. it had otherwise being a civil Court entrusted with the jurisdiction to try the suit even in an ordinary manner which is lacking in the case in hand as the Court of district judge specifically entrusted jurisdiction to entertain and decide summary chapter suits cannot be equated with the Court of civil judge or senior civil judge but hierarchically it is their appellate Court. According to Section 15, C.P.C. every suit is required to be instituted in the Court of lowest grade competent to try it with the exception provided under Order XXXVII, Rules 1 & 2, C.P.C. According to Section 2(4), C.P.C (definition clause), district means the local limit of the jurisdiction of a principal civil Court of original jurisdiction which is called district Court and includes the local limits of ordinary civil jurisdiction of high Court whereas Section 5, C.P.C explicates subordination of Courts and expounds that for the purposes of the Code, the district Court is subordinate to the high Court and every civil Court of a grade inferior to that of a district Court and every Court of small causes is subordinate to the high Court and district Court. The trial Court in this case has tried the suit in a summary chapter and not as an ordinary suit and for the same reasons disallowed other reliefs which were never quit or relinquished by the plaintiff. In our considerate view, the impugned judgment cannot be protected as a judgment in an ordinary suit.

14. We are sanguine that both parties are not satisfied with the judgment. One is aggrieved by whole judgment and grant of decree whereas other is aggrieved due to non-allowing all claims and praying us to grant him remainder also. The maxim of equity, “actus curiae neminem gravabit” an act of the Court shall prejudice no man is applicable in every proceedings which is founded upon justice or good sense and obliges a safe and sound guidebook for the administration of law and justice. No findings have been given by the trial Court to hold whether the Iqrarnama, the nucleus of the case was negotiable instrument or not. The evidence was also led but at this stage, we do not want to deliberate and touch on the evidence but at this moment in time want to be confined to the question of jurisdiction alone. Had the trial Court examined the plaint at right time to figure out the question of jurisdiction, the precious time of Court should not have wasted nor should the parties have burdened to continue the litigation before the forum having no jurisdiction. The record reflects that while admitting suit in summary chapter, the trial Court had framed issue No. 2 pertaining to the claim of damages lodged by the plaintiff but in the judgment, nothing was said except that in summary suit damages cannot be granted and strictly treating the suit in summary manner the suit was decreed for principal amount. It is clear that the plaintiff did not claim any special damages but damages in general. Mental shock, agony and torture imply a state of mind. Such state of mind can be proved only by a positive assertion of one who experiences the same. Ref: (1996 CLJ 283). Appellant Abid Ali Advocate wants us to grant these damages in appeal which claim was not considered by the trail Court under the notion that it cannot be granted in summary suit whereas we have already held that the suit should have been instituted as an ordinary suit rather than summary suit where the claim of damages could also be considered by the concerned Court in an ordinary suit. It is well settled exposition of law that it is the obligatory duty of the Judge to apply the correct law to a lis and not of the litigant to point out the law applicable. The primary duty to do the

justice and to apply the correct law to the facts of a case is the exclusive duty of a Judge.

1. In the judgment reported as 2020 YLR 578, (Muhammad Yousuf and others versus Trustees of the Port of Karachi and others), we after surveying various local and foreign dictums held that to perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience. Legal Maxim Coram non judice indicates a proceeding which is outside the authority of a judge or without legal jurisdiction.

2. The judgment is based on erroneous reasoning and incorrect exposition of law therefore the impugned judgment and decree dated 31-05-2018 are set aside. Since the evidence has already been recorded therefore to save time and avoid further protracted litigation, we do not deem it appropriate to direct de novo trial, however the matter is remanded back to the learned District and Sessions Judge, Karachi, Central to consign the matter to the concerned Senior Civil Judge as an ordinary suit for decision on merits after considering the pleadings and evidence lead by the parties. The consignee Court shall provide ample opportunity of hearing to the parties or their advocates and if required, the Court may also frame additional issues and allow parties to lead additional evidence. We expect that the learned consignee Court will decide the matter on merits within four months.

(Y.A.) Appeal allowed

PLJ 2021 Karachi 78 (DB)

Present:Muhammad Ali Mazhar and Agha Faisal, JJ.

SAJID PLASTIC FACTORY through Sole Proprietor--Appellant

versus

MSC BAHAMAS through Master/Chief Officer and others--Respondents

Admiralty Appeal No. 5 of 2014, decided on 9.3.2020.

Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)--

----Ss. 3(2)(g)(h) & 7--Civil Procedure Code, (V of 1908), S. 96--Admiralty suit for recovery of damages--Filing of C.M. by Respondents No. 1 to 8 for return of plaint--Suit proceedings were stayed--Order for arrest of ship--Appellant was engaged in business of various import goods--Appellant was consignee of goods through Respondent No. 9--Respondent No. 6 was assigned four bills of lading--Respondents No. 8, 9 received payments as local agents--Purchase of scrape by appellant--Containers of appellant were transhipped--Some containers were empty during examination of goods--Appointment of commission by Court--Payment of fee of commission--Submission of report of Commissioner Admiralty Jurisdiction--Consent order--Interest of parties--Territorial jurisdiction--Opportunity to adducing of evidence--Direction to--Stay of proceedings cannot be claimed as a matter of right otherwise whole purpose of Admiralty jurisdiction of Sindh High Court vested in law will become redundant and superfluous and its jurisdiction would only be restricted and limited to arrest ship and ask for security as precondition to allow sailing of vessel then stay suit which is not actual philosophy and astuteness of law--Appellant purchased scrap items from Respondent No. 9--Accordingly, 24 containers of appellant were transshipped from Salalah port to Port Bin Qasim and appellant sought clearance of consignment but in course of shifting and examination of goods it was found that some containers were almost empty and appellant agitated matter before Respondents Nos. 1 to 8 but of no avail, thereafter, appellant invoked admiralty jurisdiction of this Court under Section 3(2)(g) & (h) and sought for recovery of damages--It is obvious that High Court there would be better place to deal with e.g., question of law, and this is so notwithstanding similarity and connection between English Law and Pakistani Law especially in shipping matters and relative familiarity of Pakistani lawyers with English Law, therefore, Single Judge was of view that dispute between parties ought to proceed in England and not in this country--In our insight and comprehension, backdrop of instant case unambiguously make obvious that ship was arrested and was allowed to sail subject to furnishing security with Nazir of this Court by dint of Bank Guarantee--24 containers lying at Karachi Port were ordered to be inspected by an officer of this Court--This order was passed by consent on C.M.A. No. 149/2012 which was filed by Respondents Nos.1 to 8 and said respondents also paid commission fee and Commissioner submitted report--Single judge also ignored Court orders which expresses that once report of expert is submitted, matter shall be fixed for settlement of issues and if need be, commissioner shall be appointed for recording evidence for early disposal of case--Court should have regard to interest of all parties and to meet ends of justice and to allow plaintiff to keep benefit of security obtained by commencing proceedings and allow proceedings before a forum where practical justice should be done--In exercise of Admiralty Jurisdiction, this Court can exercise jurisdiction over all ships whether Pakistani or not and whether registered or not and wherever domicile of their owners may be--Admiralty Court can exercise jurisdiction in respect of all claims, causes and questions specified in Ordinance wherever arising irrespective of fact that cause of action has arisen within territorial jurisdiction of Court or not and parties are domiciled in a foreign country, an action in rem can be entertained--Not only security has been furnished but some material orders have already been passed in trial Court so in all fairness, issues should be settled and parties may be afforded an opportunity to adduce evidence so that pending suit may be decided on merits rather than lying dormant or hanging around without any lawful purpose and justification--In our consciousness we do not recognize that continuance of action in this Court would operate an injustice to defendants--Defendants have also failed to make out a case that plaint did not disclose a cause of action or that suit is frivolous, vexatious and or oppressive to them or it amounts an abuse of process of Court--Appeal was allowed. [Pp. 105, 106 & 107] A, B, C, D, E, F & G

PLD 1970 SC 373 ref.

Mr. Hamid Ali Shah, Advocate for Appellant.

Syed Abbadul Hussnain, Advocate for Respondents Nos. 1 to 8.

Mr. Jawad A. Sarwana, Amicus Curiae.

None present for Respondents Nos. 9 and 10.

Dates of hearing: 2, 5.10.2018, 6.3.2019 & 26.9.2019.

Order

Muhammad Ali Mazhar, J.--This appeal has been brought to challenge an order dated 11.6.2014, passed by the learned single Judge (O.S.) on C.M.As. Nos.151 and 152 of 2012 in an Admiralty Suit No. 12 of 2012.

1. Short-lived Facts

The appellant is a sole proprietorship concern and engaged in the business of imports of various goods and variety of merchandize. The appellant was consignee of goods through Respondent No. 9 whereas the Respondents Nos. 1 to 4 are ships/vessels beneficially owned by the Respondent No. 5, the master shipping company. The Respondent No. 6 signed four bills of lading and the Respondents Nos.7 and 8 are local agents. The Respondents Nos. 7 and 8 received the payments and also referred to the Respondent No. 9 as shipper. The consignments i.e. scrap items weighing 509.24 Metric Tons against the consideration of US$400,908.55 through invoice 0810101 dated 08.10.2008 were shipped through Respondent No. 9. The appellant hired 24 containers of the Respondents Nos.5 and 6 through Respondent No. 7. The Respondent No. 6 being the agent of the Respondent No. 5 signed four (4) bills of lading with company's seal, containing the information about the Containers numbers and respective weight, Seal No and the booking reference etc. The Respondent No. 7 issued arrival advices on 11.11.2010, 01.12.2010 and 03.12.2010 informing therein that 24 containers of the appellant were transshipped from Salalah port to Port Bin Qasim. The appellant sought clearance of consignment filing GD on 14.11.2010 and in the course of shifting of the containers for examination of goods, the containers were weighed and it was found that the said containers were almost empty. The appellant agitated the matter before Respondents Nos. 1 to 8 but of no avail. Feeling aggrieved, the appellant invoked the admiralty jurisdiction of this Court under Section 3(2)(g) & (h) and sued the respondents for recovery of damages of US $ 1455908.55 equivalent to Rs.131,031,331.00 which includes the Invoice Value of the Consignment/Cargo. The Respondents submitted to the jurisdiction and filed different applications, counter affidavits and fully participated in the proceedings. A ship arrest order was also passed on 17.08.2012 and security in the sum of US$500,000/- has been submitted by the Respondents Nos.1 to 8 with the Nazir of this Court. The Respondents Nos. 1 to 8 filed two application C.M.A. 151/2012 seeking stay of suit and C.M.A. 152/2012 seeking the return of the plaint. The learned Judge was pleased to stay the suit by allowing the application C.M.A. No. 151/2012 vide Impugned Order dated 11.06.2014 and C.M.A. 152/2012 was disposed off having become infructuous.

1. The learned counsel for the appellant argued that while passing the impugned order, the learned judge has not taken into consideration the convenience of the parties but only considered the convenience of the Respondents Nos.1 to 8, disregarding the facts that not only the parties, their counsels rather witnesses are also available in Karachi. The stay of suit amounts to denial of justice. The learned judge miscalculated the case of M.A. Chowdhary v. MITSUI O.S.K Lines Limited(PLD 1970 SC 373) in which suit was never stayed. The learned judge also unheeded the law laid down by this Court in Messrs Aslo Marines v. M.T. Magda and another (PLD 1985 Karachi 745) and Messrs Mercantile Fire v. Messrs Arcepey Shipping Company (PLD 1978 Karachi 273). It was further contended that the Court has also disregarded the part of the material proceedings whereby M.V. MSC Clementina was ordered to be arrested vide order dated 17.08.2012 and was allowed to sail subject to furnishing security in the sum of 500,000 US$ with the Nazir of this Court by means of Bank Guarantee bring forth by Standard Chartered Bank. He further argued that the learned single judge also disregarded the part of the material proceedings whereby vide order dated 24.08.2012, 24 containers lying at Karachi Port were inspected by an officer of this Court. This order was passed by consent on C.M.A. No. 149/2012 filed by Respondents Nos.1 to 8 and the said respondents also paid the inspection fee to the officer of this Court. The Commissioner submitted his report on 05.09.2012. The Court further ignored an order dated 27.03.2013 passed again with the consent of the parties for forensic examination of the 24 containers. This entire activity amounts to material participation of Respondents Nos.1 to 8 in the suit. The learned single judge also unnoticed the direction in suit videorder dated 27.03.2013 that once the report of expert is submitted, the matter be put up in Court for settlement of issues and if need be, the commissioner shall be appointed for recording evidence of the parties for early disposal of the case. The learned counsel for the appellant referred to following judicial precedents:--

2. 1987 SCMR 393 @ 395 (State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem). Under Section 28 of Contract Act every agreement by which any party thereto is restricted absolutely by the usual legal proceedings in the ordinary Courts is void to that extent.

3. 2010 CLC 1267 @ 1270. (Messrs Unitrade Impex and others v. Federation of Pakistan) The first determining factor is that whether the Civil Court at Rawalpindi had no jurisdiction in spite of the fact that there was consent of both the parties. After going through the case law cited by the learned counsel of the petitioner and the respondent, it cannot be denied that the consent of the parties do not give jurisdiction to the Court, which had no jurisdiction.

4. PLD 1994 Lah. 525 @ 544 (Messrs Rupali Polyester Ltd v. Dr. Nael G. Bunni). The principles which emerge that the jurisdiction vested in the Courts cannot be taken away even by express agreement of the parties and the arbitration agreement even where Rules of International Chamber of Commerce apply do not have the effect of depriving the Courts of their jurisdiction.

5. 1992 SCMR 1174 at 1178 (Messrs Kadir Motors (Regd.) Rawalpindi v. Messrs National Motors Ltd., Karachi). The intention behind the said provision of law (Sec 28 of Contract Act) is that all those agreements which restrain a person to enforce his rights under a contract by usual legal proceedings in ordinary tribunals are void. It obviously implies that a party cannot be restrained to enforce his rights in ordinary Court of law but if by mutual agreement between the parties a particular Court having territorial or pecuniary jurisdiction is selected for the determination of their dispute, there appears to be nothing wrong or illegal in it or opposed to public policy.

6. Spiliada Maritime Corporation v Cansulex Ltd. [1986]. The Spiliada was a ship owned by a Liberian company, flying the Liberian flag, and managed both in Greece and England. The vessel was to take sulphur from Vancouver to ports in India. The bills of lading said they were to be construed and governed by English law, When the case came to the House of Lords on a further appeal, Lord Goff outlined the principles behind when a stay or dismissal of proceedings could be granted. Where there is another available forum to hear the case, the burden of proof is on the claimant to show why the trial should take place in England. Factors such as convenience, expense, availability of witnesses and where the companies do business, could all be considered by the Court. The Court summed up its decision underlying the principle that the Court should have regard to the interest of all the parties and to meet the ends of justice. The principles of appropriate forum are:

i) To allow the plaintiff to keep the benefit of the security obtained by commencing the proceedings;

ii) To allow proceedings to be commenced or continued where the claim is not barred by time;

iii) To allow proceedings before a forum where practical justice should be done. The practical justice demands that the plaintiff is not to be deprived of having started the proceedings within limitation;

iv) To allow proceedings in the country or before the Courts where there is access to the expert witnesses.

1. Eleftheria Case (1969) 1 Lloyd's Rep.

2. The Eleftheria case/Brandon Rule. Despite an exclusive jurisdiction clause, the Court can refuse a stay of proceedings, if exceptional circumstances amounting to strong cause are shown. The question in a comprehensive manner was first dealt with in the Eleftheria Case (1969) 1 Lloyd's Rep 237 where Brandon J held that the Plaintiff had the burden of proving a strong cause. While the Court should, in coming to its decision, take into account all the circumstances of a case, the following were identified by Brandon J to be the matters pertinent to have regard to: (1) Where plaintiffs sue in England in breach of an agreement to refer disputes to a foreign Courts, and the defendants apply for a stay, the English Court, assuming the claim to be otherwise within its jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not. (2) The discretion should be exercised by granting a stay unless strong cause for not doing so is shown. (3) The burden of proving such strong cause is on the plaintiffs. (4) In exercising its discretion the Court should take into account all the circumstances of the particular case. (5) In particular, but without prejudice to (4), the following matters, where they arise, may properly be regarded: a. In what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the English and foreign Courts. b. Whether the law of the foreign Court applies and, if so, whether it differs from English law in any material respects. c. With what country either party is connected, and how closely. d. Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages. e. Whether the plaintiffs would be prejudiced by having to sue in the foreign Court because they would: (i) be deprived of security for their claim; (ii) be unable to enforce any judgment obtained; (iii) be faced with a time-bar not applicable in England; or (iv) for political, racial, religious or other reasons be unlikely to get a fair trial.

3. Gulf Oil Corp v. Gilbert, Doing business as Gilbert Storage and Transfer {330 US 501 (1947)}. The Supreme Court of United States of America while considering the question whether the United States District Court has inherent power to dismiss the suit pursuant to the doctrine of Forum Non Conveniens and, if so, whether that power was abused in this case. The Supreme Court prescribed the important consideration/ factors of the convenient forum as under:-

"If the consideration and weight of the factors requisite to given result are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to the source of proof, availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises if view would be appropriate to the action, and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The Court will weight relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, "vex", "harass", or "oppress" the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed."

1. Mac Shannon v. Rockware Glass Ltd. (1978) AC 795. Lord Diplock interpreted the majority speeches in the Atlantic Star as an invitation to drop the use of the words 'vexatious' and 'oppressive' (an invitation which I gladly accept) and formulated his distillation of principle in words which are now very familiar. He resorted to:

"In order to justify a stay two conditions must be satisfied, one positive and the other negative: (a) the defendant must satisfy the Court that there is another forum to whose jurisdiction he is amenable in which justice can be done between the parties at substantially less inconvenience or expense, and (b) the stay must not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of the English Court".

1. The learned counsel for the Respondents Nos.1 to 8 not only supported the impugned order but further argued that the suit filed by the appellant is not maintainable as this Court in its admiralty jurisdiction had no jurisdiction to entertain this matter. The learned counsel did not deny ownership of the carrier and the carriage of goods contract i.e. bill of lading executed but argued the respondents never committed any breach of the terms of the contract. The respondents successfully discharged their liability by discharging the cargo at the port of destination. The containers were delivered at the port of destination in the sealed condition and as such nothing happened in sea giving rise to any cause of action to the appellant. The appellant had purchased the cargo from the Respondent No. 9 hence the Respondents Nos.1 to 8 has had no concern as it is clearly stated in the document itself that the carrier is not responsible for the particulars furnished by the shipper and neither the particular are checked by the carrier and in this regard Clause 14 of the bill of lading is very much clear. Two inspections were carried out by the orders of this Court which revealed that the containers had been properly sealed and lying in the intact condition which proved that nothing happened in the sea. He further argued on the legal proceedings instituted by the respondents before the High Court of Justice, Queens Bench Division, Commercial Court, London, the stay is operating against the appellant therefore the present proceedings are not maintainable and instead of defending the validly instituted proceedings in London, the appellant filed suit in this Court and for this reason, an application was moved in the suit for staying the proceedings till the decision of already pending proceedings before the Queen's Bench Division London with another application as an alternate to return the plaint for want of jurisdiction as per relevant clauses of the Bill of Lading does not have the jurisdiction to entertain this suit.

2. The learned Amicus Curiae submitted a brief note on the status of admiralty jurisdiction of the High Court involving action in rem and foreign jurisdiction/international arbitration clauses that there is no fetter under the Admiralty Jurisdiction of the High Court Ordinance, 1980 from exercising jurisdiction in an action in rem against a vessel even if there is an express foreign jurisdiction clause between plaintiff and defendant(s). He referred to the following judicial precedents:-

C.V. 'Lamon Bay' and others v. Sadruddin and others 2005 CLD 133 in which the learned division bench of this Court held as under:

This argument is based on the provisions of Code of Civil Procedure and completely ignores the nature and characteristics of an action in rem which is different from an ordinary civil suit. In exercise of Admiralty Jurisdiction which can be invoked by an action in rem, the Admiralty Court can exercise jurisdiction over all ships whether Pakistani or not, and whether registered or not and wherever the domicile of their owners may be. The Admiralty Court can exercise jurisdiction in respect of all claims, causes and questions specified in clauses (a) to (q) of sub-section (2) of Section 3 of the Ordinance wherever arising. If the claim is entertainable under the Admiralty Jurisdiction which can be invoked by an action in rem, then irrespective of the fact that the cause of action has arisen within the territorial jurisdiction of the Court or not and the parties are domiciled in a foreign country, an action in rem can be entertained.

Port Qasim Authority and others v. Official Assignee of Karachi and others 2007 CLD 143 Karachi. The learned Judge described the concept of rem as follows:

"When an action in rem is resorted to under the Admiralty Jurisdiction of this Court, it is in fact an action against property or ship and in case the plaintiff succeeds in its action, then the property or the ship is to be sold towards the satisfaction of the claim. The action in rem under the Admiralty Jurisdiction of this Court is legal proceedings against the corpus of the offending ship…. The object of such an action is to acquire jurisdiction over the ship as the owner of the vessel might be located overseas over which the Court may not have jurisdiction." (Pages 148-149)

Booz-Allen and Hamilton Inc. v. Sbi Home Finance Ltd. AIR 2011 SC 2507 = (2011) 5 SCC 532. The Court observed regarding rem, personam and arbitration clauses (As per Mitsui case, foreign jurisdiction clauses are in the nature of arbitration clauses):

"Consequently, where the cause/dispute is inarbitrable, the Court where a suit is pending will refuse to refer the parties to arbitration, under Section 8 of the Act, even if the parties might have agreed upon arbitration as the forum for settlement of such disputes. The well recognized examples of non-arbitrable disputes are:

(i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences;

(ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody;

(iii) guardianship matters;

(iv) insolvency and winding up matters;

Russell on Arbitration [22nd Edition] observed thus [page 28, para 2.007]

"Not all matter are capable of being referred to arbitration. As a matter of English law certain matters are reserved for the Court alone and if a tribunal purports to deal with them the resulting award will be unenforceable. These include matters where the type of remedy required is not one which an arbitral tribunal is empowered to give."

The subsequent edition of Russell [23rd Edition, page 470, para 8.043] merely observes that English law does recognize that there are matters which cannot be decided by means of arbitration. Mustill and Boyd in their Law and Practice of Commercial Arbitration in England [2nd - 1989 Edition], have observed thus:

"In practice therefore, the question has not been whether a particular dispute is capable of settlement by arbitration, but whether it ought to be referred to arbitration or whether it has given rise to an enforceable award. No doubt for this reason, English law has never arrived at a general theory for distinguishing those disputes which may be settled by arbitration from those which may not....

Second, the types of remedies which the arbitrator can award are limited by considerations of public policy and by the fact that he is appointed by the parties and not by the state. For example, he cannot impose a fine or a term of imprisonment, commit a person for contempt or issue a writ of subpoena; nor can he make an award which is binding on third parties or affects the public at large, such as a judgment in rem against a ship, an assessment of the rateable value of land, a divorce decree, a winding-up order...."

1. It was further contended by the learned amicus curiae that right in rem is a right exercisable against the world at large as contrast from a right in personam which is an interest protected solely against specific individuals. Actions in personam refer to actions determining the rights and interests of the parties themselves in the subject matter of the case, whereas actions in rem refer to actions determining the title to property and the rights of the parties, not merely among themselves but also against all persons at any time claiming an interest in that property. Correspondingly, the judgment in personam refers to a judgment against a person as distinguished from a judgment against a thing, right or status and Judgment in rem refers to a judgment that determines the status or condition of property which operates directly on the property itself. Besides arrest of vessel, another related issue for the Court dealing with actions in rem (against the vessel) is after a security /bank guarantee for release of the vessel, how long should such guarantee be retained by the Court in the event that the plaintiff does not proceed to the foreign tribunal. Almost in all of the reported case laws, once the issues in rem have been decided, the Courts have then turned to the merit of the case that is the dispute between the parties.

2. Heard the arguments. According to the definition of "cause" postulated in the Admiralty Jurisdiction of the High Court Ordinance, 1980, the expression "cause" includes any cause, suits, action or other proceeding in the High Court in the exercise of its admiralty jurisdiction. The Sindh High Court and High Court of Balochistan within their respective territorial jurisdiction may exercise admiralty jurisdiction whereas the Lahore High Court and Peshawar High Court within their respective territorial jurisdiction may exercise said jurisdiction in cases in which any question or claim relating to aircraft is to be determined. The Admiralty jurisdiction of the High Court is stipulated under Section 3 of the Admiralty Jurisdiction of High Court Ordinance, 1980 in which the High Court has jurisdiction to hear and determine causes, questions or claims. For the ease of reference, Section 3 of the Admiralty Jurisdiction of High Court Ordinance, 1980 is reproduced as under:-

3. Admiralty Jurisdiction of the High Court.--(1) The Sindh High Court and the High Court of Baluchistan shall have and exercise, within their respective territorial jurisdiction. Admiralty jurisdiction as is in this Ordinance provided and the Lahore High Court and the Peshawar High Court shall, within their respective territorial jurisdiction, have and exercise the said jurisdiction in cases in which any question or claim relating to aircraft is to be determined.

(2) The Admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following causes, questions or claims--

(a) Any claim to the possession or ownership of a ship or to the ownership of any share therein or for recovery of documents of title and ownership of a ship, including registration certificate, log book and such certificates as may be necessary for the operation or navigation of the ship;

(b) any question arising between the co-owners of a ship as to possession, employment or earnings of that ship;

(c) any claim in respect of a mortgage of or charge on a ship or any share therein;

(d) any claim for damage done by a ship;

(e) any claim for damage received by a ship;

(f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charterers or persons in possession or control of a ship or of the master or crew thereof or of any other person for whose wrongful acts, neglects or defaults, the owners, charterers of persons in possession of control of a ship are responsible, being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods on, in or from the ship or in the embarkation, carriage or disembarkation of persons on, in or from the ship;

(g) any claim for loss of or damage to goods carried in a ship;

(h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship;

(i) any action or claim in the nature of salvage of life from a ship or cargo or any property on board a ship or the ship itself or its apparel, whether services rendered on the high sea or within territorial waters or internal waters or in a port, including any claim arising by virtue of the application by or under Section 12 of the Civil Aviation Ordinance, 1960, (XXXII of 1960), of the law relating to salvage to aircraft and their apparel and cargo;

(j) any claim in the nature of towage in respect of a ship or an aircraft, whether services were rendered on the high sea or within territorial waters or internal waters or in a port;

(k) any claim in the nature of pilotage in respect of a ship or an aircraft;

(l) any claim in respect of necessaries supplied to a ship;

(m) any claim in respect of the construction, repair or equipment of a ship or dock charges or dues;

(n) any claim by a master or members of the crew of a ship for wages and any claim by or in respect of a master or member of the crew of a ship for any money or property which, under any of the provisions of the Merchant Shipping Acts or the Merchant Shipping Act, 1923 (XXI of 1923), is recoverable as wages or in the Court and in the manner in which wages may be recovered;

(o) any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship;

(p) any claim arising out of an act which is or is claimed to be a general average act;

(q) any claim arising out of bottomry or respondentia;

(r) any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried, or have been attempted to be carried, in a ship as a Naval Prize or in violation of customary law of the sea or otherwise, or for the restoration of a ship or any such goods after seizure, or for Doritos of Admiralty, together with any other jurisdiction for the grant of such reliefs as are provided under the Merchant Shipping Acts or the Merchant Shipping Act, 1923 (XXI of 1923), any other jurisdiction which has vested in the High Courts as a Court of Admiralty immediately before the commencement of this Ordinance or is conferred by or under any law and any other jurisdiction connected with ships or aircraft in respect of things done at sea which has by tradition or custom of the sea been exercised by a Court of Admiralty apart from this section.

(3) The jurisdiction of the High Court under clause (b) of sub-section (2) includes power to settle any account outstanding and unsettled between the parties the parties in relation to the ship, and to direct that the ship, or any share thereof, shall be sold, and to make such other order as the Court thinks fit.

(4) The reference in clause (i) of sub-section (2) to claims in the nature of salvage includes a reference to such claims for services rendered in saving life from a ship or an aircraft or in preserving cargo, apparel of wreck as, under any law for the time being in force, are authorised to be made in connection with a ship or an aircraft.

(5) The preceding provisions of this section apply--

(a) in relation to all ships or aircraft, whether Pakistani or not and whether registered or not and wherever the residence or domicile or their owners may be;

(b) in relation to all claims, where-so-ever arising including, in the case of cargo or wreck salvage, claims in respect of cargo or wreck found on land; and

(c) so far as they relate to mortgages and charges, to all mortgages and charges created under foreign law;

Provided that nothing in this sub-section shall be construed as extending to cases in which money or property is recoverable under any of the provisions of the Merchant Shipping Acts or the Merchant Shipping Act, 1923 (XXI of 1923).

1. In the alike phraseology, subject to the provisions of Section 5, the High Court may also hear and determine the causes of action in personam. Any judgment passed by the High Court in its Admiralty jurisdiction may be challenged by way of appeal which shall lie to the bench of two or more Judges of the High Court, however, an appeal to the Supreme Court from the judgment or final order of the High Court in exercise of its Admiralty jurisdiction shall lie only if the value of the subject matter of the dispute in appeal is not less than one lac rupees and the Supreme Court grants leave to appeal. Section 9 of the Admiralty Jurisdiction of the High Court Ordinance, 1980 had repealed the Courts of Admiralty Jurisdiction (Pakistan) Act, 1891, the Admiralty Court Act, 1840 and the Admiralty Court Act, 1861 in so far as they apply to and operate in Pakistan. Under Chapter XXXII of the Sindh Chief Court Rules (Original Side), Rules 729 to 775 are the Rules framed and mounted under the Colonial Courts of Admiralty Jurisdiction Act, 1890. The said Rules germane and correlated with diversified and expanded characteristics of the Admiralty Jurisdiction including Rule 731 in which by instituting Admiralty suit in action in rem, any party may apply for the warrant of arrest of the property proceeded against. More than enough routine and procedural matters are also provided under the Rules to deal different situations and set of circumstances in the Admiralty Jurisdiction of this Court including arrest of ship.

2. The relevant portion of the impugned order is reproduced as under:-

3. After having considered the facts and circumstances of the present case in light of the foregoing, I conclude that the defendants have been able to make out a case for stay of the suit. I have not, with respect, found the submissions to the contrary made by the learned counsel for the plaintiff convincing. Thus, I cannot, with respect, accept that the plaintiff as consignee is not bound by the contract of carriage as evidenced by the bills of lading. In my view, such conclusion would be clearly contrary to what is provided in the Bills of Lading Act, 1856 and would be most disadvantageous for consignees in this country. Since the consignee is bound by the totality of the contract, and the jurisdiction clause is part thereof, it cannot be said that the latter is not binding as well. This would be so even if the jurisdiction clause is to be treated as being equivalent to, or in the nature of, an arbitration clause. As regards the specific points taken by learned counsel in terms of what might be called the Eleftheria principles, I am, with respect, unable to agree that a case has been made for not staying the suit. Thus, while it is true that the evidence in the Bahamas is outside both Pakistan and England, tendering it in English proceedings would have the advantage of respecting the sanctity of the contract. As is clear from Mitsui, this was a matter to which considerable importance was attached by the Supreme Court. Insofar as the evidence in Pakistan is concerned, it cannot be said that its nature is such that it cannot also be tendered in England. The fact that the carrier has already initiated proceedings in the English High Court and apparently obtained an injunction against the plaintiff indicates that it is serious about litigating in that jurisdiction and is not merely seeking some procedural advantage (point 5(d)). The submission that the plaintiff's claim may become time barred if it has to proceed in England (point 5(e)(iii)) would appear to be misconceived; if anything, periods of limitation under English law are more generous than equivalent provisions under our law. Since the contract of carriage is governed by English law, it is obvious that the High Court there would be better placed to deal with, e.g., questions of law, and this is so notwithstanding the similarity and connection between English law and Pakistani law especially in shipping matter and the relative familiarity of Pakistani lawyers with English law. Having considered the totality of the circumstances, I am therefore of the view that the dispute between the parties ought to proceed in England and not in this country.

4. In Mitsui the Supreme Court made clear that in cases involving a foreign jurisdiction clause, the plaint could not be returned. The proper course would be to stay the proceedings if the Court concluded that the matter ought to proceed in the foreign jurisdiction. Since I have so concluded, C.M.A. 151/ 2012 is hereby allowed and the present suit is stayed. The other application, C.M.A. 152/2012, becomes infructuous and is disposed off as such.

5. In the case of M. A. Chowdhury v. Messrs Mitsui O.S.K. Lines Ltd. and others (PLD 1970 Supreme Court 373), basically before the apex Court three appeals were filed to raise a common question of law relating to the validity of the exclusive jurisdiction clause in bills of ladings. Appellant Messrs M.A. Chowdhury & Co., imported 115 coils of M. S. Black wire from Japan. The above consignment was shipped from Osaka, Japan, per S.S. Kyushu Maru owned and controlled by the respondent, Messrs Mitsui O.S.K. Lines Ltd., under a bill of lading No. OCG 113, dated 25-2-65, to Chittagong port. The consignment of the appellant was short landed as per certificate issued by the Chittagong Port Trust. The appellant filed a suit in the Court of the 3rd Subordinate Judge, Chittagong, on the 30th of March 1966, claiming Rs. 22,000.00 with interest thereon at 61 % as damages for the loss suffered by him and for costs. The owners of the vessel and their local agents filed an application under Order VII, Rule 10 of the Code of Civil Procedure that in view of the condition with regard to choice of forum provided in bill of lading, the Courts at Chittagong had no jurisdiction to try the suit. The relevant excerpts of the judgment are reproduced as under:

"The principle referred to by Lord Denning was propounded earlier by Atkin, L.J., as he then, was in the Athenee's case ((1922) 1 ILR 6), wherein the latter had adopted the language of Lord Moulton from the judgment in the case of Bristol Corporation v. John Aird & Company. This was to the following effect:

"I always look upon these arbitration clauses as in a business point of view a substantial portion of the contract, and I think the Courts have acted quite rightly in requiring good reason to be shown why this part of a contract, should not be strictly performed. But, my Lords, it must be remembered that these arbitration clauses must be taken to have been inserted with due regard to the existing law of the land, and the law of the land as applicable to them is, as I have said, that it does not prevent the parties coming to the Court, but only gives to the Court the power to refuse its assistance in proper cases. Therefore, to say that if we refuse to stay an action we are not carrying out the bargain between the parties does not fairly describe the position. We are carrying, out the bargain between the parties, because that bargain to substitute for the Courts of the land a domestic tribunal was a bargain into which was written, by reason of the existing legislation, the condition that it should only be enforced if the Court thought it a proper case for its being so enforced."

Atkin, L. J., thought that whether it was a case of a clause giving jurisdiction to a foreign tribunal or to another domestic tribunal the question always is as to "whether there are proper reasons for not enforcing it" and amongst these reasons he considered "the balance of convenience, the substantial advantage which the plaintiffs may have by suing in the country, and other advantages in respect of proof of loss" to be relevant.

In Meckender and others v. Feldia A. G. and others ((1966) 3 All E R 847), the defendants in a suit brought in England in breach of a contract which contained such a foreign arbitration clause, had applied to have the leave granted to serve the writ out of jurisdiction and all subsequent.

Finally, in the Elefrheria's case ((1969) 2 All E R 641), which was also a case of an application for stay of action brought against the ship-owners by the cargo-owners, Brandon, J., after reviewing all earlier decisions, summarised the principles followed by English Courts as follows:--

"(1) where plaintiffs sue in England in breach of an agreement to refer disputes to a foreign Court and the defendants apply for stay, the English Court, assuming the claim to be otherwise within its jurisdiction, is not bound to grant stay but has a discretion whether to do so or not;

(2) the discretion should be exercised by granting a stay unless strong cause for not doing so is shown;

(3) the burden of proving such a strong cause is on the plaintiff';

(4) in exercising its discretion the Court should take into account all the circumstances of a particular case;

(5) without prejudice to (4) above the following matters, where they arise can properly be taken into account;

(a) in what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the English and foreign Courts;

(b) whether the law of the foreign Court applies and, if so, whether it differs from English law in any material respects;

(c) with what country either party is connected, and how closely;

(d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking a procedural advantage;

(e) whether the plaintiffs would be prejudiced by having to sue in the foreign Court, because they would

(i) be deprived of security for that claim;

(ii) be unable to enforce any judgment obtained;

(iii) be faced with a time bar not applicable in England; or

(iv) for political, racial, religious or other reasons be unlikely to get a fair trial.

It would thus appear that so far as England is concerned the Courts there had never proceeded on the basis that such a clause absolutely ousted the jurisdiction of the English Courts. At most, they have treated such a clause as being in the nature of a submission to arbitration, which does not oust the jurisdiction of the Court but gives the Court a discretion to decide whether it will allow the suit to proceed or enforce the agreement between the parties and compel them to go to arbitration as agreed upon whether before another tribunal in the same country or in a foreign country or before a lay arbitrator.

The contention of the learned counsel supporting the decisions of the Dacca High Court that such foreign Jurisdiction clauses are not hit by the main provisions of Section 28 of the Contract Act, as, they are neither opposed to the public policy nor amount to an absolute ouster of jurisdiction of "ordinary tribunals" within the meaning of the section, is a lithe difficult to accept. I cannot persuade myself that "ordinary legal proceedings" and "ordinary tribunals" referred to in that section embrace the proceedings under different systems that may be prevalent in the foreign Courts as also such foreign Courts themselves, merely because a foreign judgment may be enforced by a suit in our own Courts. This can be done even where the foreign judgment has been delivered in a case where there is no contract containing such a clause. The legal proceedings and tribunals referred to in Section 28 of the Contract Act can only mean legal proceedings and tribunals known to the Legislature as "ordinary tribunals" in the country and the usual proceedings available in these Courts.

I am also not impressed by the argument that since no suit can be filed against a non-resident foreigner in Pakistan the exclusive jurisdiction clause in a contract entered into with such a foreigner must be treated in a different manner. This has really no bearing on the question of jurisdiction. If the, suit can otherwise be defeated or is not maintainable in the Courts in Pakistan, that is an entirely a different matter. That cannot be a valid ground for legalising the exclusion of the jurisdiction of the Courts in Pakistan or taking away "the jurisdiction which they would otherwise possess under the law of the land.

My examination of the treatment given to such foreign’ jurisdiction clauses by Courts in different countries leads me to, the irresistible conclusion that nowhere have the Courts gone to the same extent as the Courts in East Pakistan. In no country has any Court accepted that such a foreign jurisdiction clause in a contract can legally oust the jurisdiction of the municipal Courts of the country, but the tendency actually seems to be that such a foreign jurisdiction clause, which is derogatory to the sovereignty of an independent country, should not be recognised. Even in Great Britain the British Maritime Law Association Agreement of 1st August 1950, has now, inter alia, provided that "in the event of any claim being contested by legal process, the ship owner will not rely on any provision in the contract of carriage stipulating that claims must be referred to tribunals outside the United Kingdom". This is a significant change.

……. To this conclusion I would like to add that if a jurisdiction clause will have indirectly the effect of relieving the carrier from the liability he would normally have incurred under the legislation of the country, then the Courts will not honour such a jurisdiction clause. Again, if the result of the enforcement of the jurisdiction clause will in effect be to deprive one of the parties to a contract of his right to seek any remedy at all, then too the clause will not be given effect to.

It now remains only to consider the question of burden, gamely, as to on whom should be the burden to satisfy the Court as to the justification for staying its proceedings, I cannot help feeling that the American view on this subject would be the one that should apply more appropriately in our own country, for, here too a foreign jurisdiction clause, as I have Im field, would, unless it came within one of the exceptions to Section 28, be void as being opposed to public policy. In such circumstances, the party who seeks to invoke the foreign jurisdiction clause, should ordinarily satisfy the Court that it is just and equitable to bind the parties to their bargain. I feel sure that if there had been a provision similar to that of Section 28 of the Contract Act in the law of Great Britain, there too the same view would have been taken. The Courts in Great Britain have taken a different view because of their willingness to recognise, as Tetley has put it "the rights of the parties to contract in almost any way they please". If there was by law any clog on such freedom the result might well have been different.

For the reasons given above, I would allow these appeals set aside the orders of the High Court and of the trial Court and remand the cases back to the trial Court to consider, in accordance with law, as to whether the suits filed before them should or should not be stayed".

Even in the aforesaid dictum, the apex Court remanded the matter to be decided afresh whether the suit was liable to be stayed or not and set aside the orders passed by the Courts below including the High Court. One more facet and important characteristic cannot be lost sight that in the present case, we are adjudicating and sit in the judgment of a lis embarked upon the provisions of the Admiralty Jurisdiction of High Courts Ordinance, 1980 which is a special law dealing the special subject. The facts in Mitsui case (supra) unequivocally demonstrates that the proceedings were initiated in the ordinary civil Court jurisdiction but not in terms of applicable admiralty laws in Pakistan at that relevant time such as the Courts of Admiralty Jurisdiction (Pakistan) Act, 1891, in which the High Court of East Bengal and High Court of West Pakistan were declared to be Courts of admiralty however this law was repealed along with the Admiralty Court Act, 1840 and Admiralty Court Act, 1861 by the Admiralty Jurisdiction of High Courts Ordinance, 1980 in which the present case has been filed.

1. Now we turn to bill of lading which is indeed an evidence of the contract of affreightment, usually entered into before the bill of lading is signed which is a receipt for the goods shipped and contains certain admissions as to their quantity and condition when put on board. It is also a document of title without which delivery of the goods cannot normally be obtained. Ref: per Lord Bramwell in Sewell v. Burdick (1884), 10 App. Cas at p.105, and The Ardennes (Owner of Cargo) v. The Ardennes (Owners), [1950] 2 All E.R.517; [1951] 1 K.B.55, where evidence was admitted of the contract which was made before the bill of lading was signed and which contained a different term. Rodocanachi v. Milburn (1886), 18 Q.B.D.67. The actual terms of bills of lading vary from company to company. But usually there are provisions in them setting out; the name of the vessel; port of shipment; port of delivery and to whom delivery is to be made; the number of the goods shipped; their apparent condition and leading marks; a general paramount clause incorporating the Hague Rules; a list of "Excepted Perils"; a "Deviation" clause; the amount of the Freight to be paid; the extent of the Shipowner's Lien over the goods carried; how delivery is to be made; a clause incorporating the York-Antwerp Rules, 1950, in relation to General Average; a "Both-to-Blame" collision clause and what law is to govern the contract. The parties to a bill of lading or a charter-party are often domiciled in different countries and the place or places where the contract is to be performed are often different from the place where the contract was made. Hence it is important to find out which system of law is applicable to any particular contract. This is called "governing" or proper" law of the contract. Lord Atkin explained the rules determining the proper law of a contract. "The legal principles which are to guide an English Court on the question of the proper law of a contract are now well settled. It is the law which the parties intended to apply. Their intention will be ascertained by the intention expressed in the contract, if any, which will be conclusive. If no intention be expressed, the intention will be presumed by the Court from the terms of the contract and the relevant surrounding circumstances. In coming to its conclusion, the Court will be guided by rules which indicate that particular facts of conditions lead to a prima facie inference, in some cases an almost conclusive inference, as to the intention of the parties to apply a particular law, e.g. the country where the contract is made, the country where the contract is to be performed. If the contract relates to immovable the country where they are situated, the country under whose flag the ship sails in which goods are contracted to be carried. But all these rules only serve to give prima facie indications of intention, they are all capable of being overcome by counter indications, however difficult it may be in some cases to find such." Ref: R.v. International Trustees for the Protection of Bondholders Aktiengesellschaft, [1937] 2 All E.R.164, at p.166; [1937] A.C.500, at p.529, applied in The Metamorphosis, [1953] 1 All E.R.723, at p.726 in relation to a bill of lading as evidence of a contract of carriage and in The Assunzione, [1954] 1 All E.R.278; [1954] P.150, C.C.

2. There are two forms of admiralty action: action in rem and action in personam. An action in rem is one in which the plaintiff seeks to make good a claim to or against a certain property for e.g., a ship or cargo in respect of which or in respect of damages done by which he alleges that he has an actionable demand. Thus in collision actions and in other cases where the plaintiff claims maritime lien, he can, if the res be within the jurisdiction, by process served upon its corpus, procure its arrest and detention by the Court until either the owners bail it out by giving security for the amount claimed by him or until the Court gives judgment upon the claim, when, if he be successful, effect may be given to such judgment by sale of the property in order to satisfy it. The effect of such judgment or sale is that the order of the Court operates directly upon the statutes of the property and transfers an absolute title to the purchaser. An action in personam is an ordinary action as in common law Courts. The judgment of the Court is a personal one (in the nature of a command or prohibition) against the unsuccessful party, though it may be enforced against his property by subsequent proceedings but even if the Court sells the property by execution under the judgment it does not thereby transfer to the purchaser an absolute title but only such title as the owner may in fact have had. Ref: B.C. Mitra, Tagore Law Lectures on The Law of Carriage by Sea, 1972, Eastern Law House, Lecture XIII, p. 167. The present author is of the opinion that all the High Courts in India which exercise admiralty jurisdiction should follow this ancient tradition in order to show the ancient origin and special nature of their admiralty jurisdiction, Halsbury's Laws of England, 2nd (Hailsham) Edn., Vol. 1, para 84, p.65. This statement of the law in so far as it describes the basic nature of the action holds good even today, ref: Halsbury's Laws of England, 4th Edn. (Re-issue), Vol. 1 (1), para 305, p.420 and paras 311-312, pp. 426-7 and notes thereunder. Ref: the Banco case, (1971) 1 All ER 524 (CA) and The Monica S. (1967) 3 All ER 470. The present law preserves the jurisdiction based on maritime lien (The Supreme Court Act, 1981 (U.K.). Section 21 (3), and extends the right to proceed in rem to many claims which do not give rise to maritime lien (ibid., Section 21 (2) and (4). Ref: Halsbury's Laws of England, 2nd (Hailsham) Edn., Vol. 1, para 84, p. 65, Castrique v. Imrie, (1870) LR 4 HL 414 and Maritime Jurisdiction and Admiralty Laws in India by Samareshwar Mahanty. Edition 2009

3. In the case of Mayar (H.K.) Ltd., v. Owners and Parties, Vessel M.V. Fortune Express, the Indian Supreme Court has held that, de hors the provisions of the Civil Procedure Code, 1908, the Court has inherent discretionary jurisdiction to stay proceedings in appropriate cases where the Court thinks fit to do so. For so holding the Supreme Court relied on decisions of Calcutta, Madras and Bombay High Courts. The Supreme Court quoted with approval the following passage from the Hansraj Bajaj's case of Calcutta High Court. The jurisdiction to stay an otherwise competent suit is to be sparingly exercised and within the strict limits of rigorous condition, the first principle is that a mere balance of convenience is not a sufficient ground for depriving a plaintiff of his right of prosecuting his action in or his right of access to the competent Courts of the land. The second principle is that the Court stays an action brought within the jurisdiction in respect of a cause of action arising entirely out of jurisdiction when it is satisfied that the plaintiff will thereby suffer no injustice whereas if the action is continued the defendant will in defending the action be the victim of such injustice as to amount to vexation and oppression and which vexation and oppression would not arise for the defendant if the action were brought in another accessible Court where the cause of action arose. In such a case the Courts have also insisted that the onus is upon the defendant to satisfy the Court, first, that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be an abuse of the process of the Court and secondly, also that the stay will not cause any injustice to the plaintiff. The Court may decline to stay the suit notwithstanding the foreign jurisdiction clause pleaded in that case holding that the defendant has not made out a case that the plaint did not disclose a cause of action or that the suit was frivolous, vexatious, oppressive to the defendant or amounted an abuse of the process of the Court. The Court further held that the principle of forum non conveniens is not attracted to the facts of this case. The cases on questions of stay fall broadly into three categories: (a) those involving foreign jurisdiction clauses, (b) those involving plea of lis alibi pendens, and (c) those involving the principle of forum non conveniens. Ref: Rashtriya Ispat Nigam Ltd. v. Verma Transport Co., AIR 2006 SC 2800, Alexandros Dryron S.A. v. Owners and Parties Interested in the Vessel M. V. "Prapti," 1990 CWN 196 at p. 205 pr, 9, (2006) 3 SCC 100: AIR 2006 SC 1828 (SCC paras 14-15, p.115-6), Bhagat Singh Bugga v. Dewan Jagbir Sawhney, AIR 1941 Cal 670; Hansraj Bajaj v. Indian Overseas Bank Ltd., AIR 1956 Cal 33, Krishnan v. Krishnamurthi AIR 1982 Mad. 101. Crescent Petroleum Ltd. v. "MONCHEGORSK" AIR 2000 Bom. 161 and AIR 1956 Cal 33.

4. The prima facie rule is that parties should be beholden to their contract and an action in defiance of their agreement to submit to foreign jurisdiction. However, the Court is likely to be less rigid if the terms of the agreement do not stipulate exclusive jurisdiction of the foreign Court. Nevertheless, the Court has a discretion in the matter of stay on the basis of a foreign jurisdiction clause when the defendant is present in the Court's jurisdiction. In The Eleftheria the principles to be followed in exercise of the discretion has been summed up by Brandon, J., in following words: "The principles established by the authorities can, I think, be summarized as follows; (1) Where plaintiffs sue in England in breach of an agreement to refer disputes to a foreign Court, and the defendants apply for a stay, the English Court, assuming the claim to be otherwise within its jurisdiction is not bound to grant a stay but has a discretion whether to do so or not. The discretion should be exercised by granting a stay unless strong cause for not doing so is shown. The burden of proving such strong cause is on the plaintiff. In exercising its discretion the Court should take into account all the circumstances of the particular case. In particular, but without prejudice to the following matters, where they arise, may properly be regarded:- (a) In what country the evidence on issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the English and foreign Courts. (b) Whether the law of the foreign Court applies and, if so, whether it differs from English law in any material respects. (c) With what country either party is connected, and how closely. (d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages. (e) Whether the plaintiffs would be prejudiced by having to sue in the foreign Court because they would: (i) be deprived of security of their claim; (ii) be unable to enforce any judgment obtained; (iii) be faced with a time bar not applicable in England; or (iv) for political, racial, religious or other reasons be unlikely to get a fair trial." Ref: Mackender v. Feldia A.G., (1967) 2 QB 590 (604), Law v. Garett, (1878) 8 Ch. D 26; Austrian Lloyd Steamship Co. v. Gresham Life Assurance Society Ltd., (1901) 1 KB 249; The Cap Blanco, (1913) p.130; The Eleftheria, (1969) 2 All ER 641; The Sindh, (1975) 1 Lloyd's Rep. 372; The Makefjell, (1976) 2 Lloyd's Rep. 29; Aratra Potato Co. Ltd. v. Egyptian Navigation Co., The El Amria, (1981) 2 Lloyd's Rep. 110 (CA); DSV Silo-und Verwalturgsgesellschaft mbH v. Senner (Owners), The Sennar, (1985) 2 All ER 104 (HL); Owners and Parties Interested in the vessel M.V. "Fortune Express" v. Maavar (HK) Ltd., 2005 (1) CHN 204, Evans Marshal & Co. Ltd. v. Bertola S.A., (1973) 1 All ER 992, (1975) 1 Lloyds Rep. 372, The Athene, (1922) 11 Lloyd L Rep. 6; The Fehmarn, (1958) 1 All ER 333; The Adolf Warski (1976) 2 Lloyds Rep. 241, (1969) 2 All ER 641. See also Spiliada Maritime Corporation v. Consulex, Ltd. The Spiliada, (1987) AC 460 (1986) 3 All ER 843, 15. So far as the general doctrine of forum non conveniens is concerned, it was held in the case of The Atlantic Star the House Lords, while granting stay on the basis of liberal interpretation of 'oppression' and 'vexation', held that in English law, unlike in Scots law, there is no general doctrine of forum non conveniens. It has, however, been observed that the more flexible test of "what justice in the particular case demands" laid down therein in preference to the test of oppression and vexation amounts to a rather fine distinction and the two tests differ "more in theoretical approach than in practical substance". English law has, by now, developed to the point where it is indistinguishable from the (originally) Scottish doctrine of forum non conveniens. Ref: (1974) AC 436, MacShannon v. Rockware Blass Ltd. (1978) AC 795 (812, 822). In this decision the House of Lords has reiterated the liberalized approach, The Abidin Daver, (1984) AC 398 (411): (1984) 1 All ER 470 (HL) 476. per Lord Diplock; Spiliada Maritime Corporation v. Consulex, Ltd., The Spiliada, (1987) AC 460 (474): (1986) 3 All ER 843 (HL) 854, per Lord Goff of Chieveley: Re Harrods (Buenos Aries) Ltd., (1991) 4 All ER 334 (CA); Ace Insurance SA-NV v. Zurich Insurance Co, and Zurich American Insurance Co. (2000) 2 Lloyd's Rep. 423.

16. The Court neither can assume jurisdiction not vested in law nor ought the Court to give up its jurisdiction conferred by the law to decide the lis between the parties. In fact for deciding or adjudicating a lis lodged in an Admiralty suit for an action in rem or personam, this is Admiralty jurisdiction of the High Court Ordinance, 1980 which confers powers and jurisdiction to the High Court to try cases. No such legislative intent or connotation can be gathered or congregated that while exercising admiralty jurisdiction, this Court can only ask to furnish the surety/security and then stay the suit with the directions to the parties to resolve the dispute in terms of jurisdictional clause incorporated in the bills of lading. The terms and conditions mentioned in the bills of lading with regard to the jurisdiction of Court at any particular place cannot be considered so sacrosanct or untouchable in admiralty jurisdiction under our codified law but the Court while exercising jurisdiction to stay the suit has to comprehend whether the Court has otherwise jurisdiction to decide the lis in its applicable admiralty laws or not. No such condition in our laws is mentioned to oust the partial or outright jurisdiction of this Court but the case has to be decided in the parameters and confines of the law. The stay of proceedings cannot be claimed as a matter of right otherwise the whole purpose of Admiralty jurisdiction of the Sindh High Court vested in the law will become redundant and superfluous and its jurisdiction would only be restricted and limited to arrest the ship and ask for security as precondition to allow sailing of vessel then stay the suit which is not the actual philosophy and astuteness of law. According to the facts, the appellant was consignee of goods through Respondent No. 9, whereas, the Respondents Nos. 1 to 4 are ship/vessel owned by Respondent No. 5. The Respondent No. 6 assigned four bills of lading and the Respondents Nos. 7 and 8 being the local agents received the payments. The appellant purchased scrap items from Respondent No. 9. Accordingly, 24 containers of the appellant were transshipped from Salalah port to Port Bin Qasim and the appellant sought clearance of consignment but in the course of shifting and examination of goods it was found that some containers were almost empty and the appellant agitated the matter before Respondents Nos. 1 to 8 but of no avail, thereafter, appellant invoked the admiralty jurisdiction of this Court under Section 3(2)(g) & (h) and sought for the recovery of damages. The ship arrest order was also passed by the learned Single Judge of this Court on 17.08.2012, however, required security was furnished by Respondents Nos. 1 to 8 with the Nazir of this Court. The learned Single Judge on C.M.A. 151/2012 stayed the suit, whereas, other application C.M.A. 152/2012 was disposed of having become infructuous. The learned Single Judge while staying the suit observed that since the contract of carriage is governed by English Law, it is obvious that the High Court there would be better place to deal with e.g., question of law, and this is so notwithstanding the similarity and connection between English Law and Pakistani Law especially in shipping matters and the relative familiarity of Pakistani lawyers with English Law, therefore, learned Single Judge was of the view that dispute between the parties ought to proceed in England and not in this country. Learned Single Judge also relied on the case of M.A. Chowdhury v. Messrs Mitsui O.S.K. Lines Ltd. (PLD 1970 SC 373) in which also the choice of forum clause in the bills of lading was involved. The learned Single Judge held that in a case involving a foreign jurisdiction clause plaint cannot be returned but the proper course would be the stay proceedings if the Court concluded that the matter ought to proceed in foreign jurisdiction. In our insight and comprehension, the backdrop of the instant case unambiguously make obvious that the ship was arrested vide order dated 17.08.2012 and was allowed to sail subject to furnishing security with the Nazir of this Court by dint of Bank Guarantee. Vide order dated 24.08.2012, 24 containers lying at Karachi Port were ordered to be inspected by an officer of this Court. This order was passed by consent on C.M.A. No. 149/2012 which was filed by Respondents Nos.1 to 8 and the said respondents also paid the commission fee and the Commissioner submitted the report on 05.09.2012. The learned single judge also ignored Court order dated 27.03.2013 which expresses that once the report of expert is submitted, the matter shall be fixed for settlement of issues and if need be, the commissioner shall be appointed for recording evidence for early disposal of the case. What put on display is material participation of the defendants in the proceedings in the trial Court. They submitted and surrendered to the jurisdiction and some orders were passed by consent even on the application of defendants. Factors such as convenience, expense, availability of witnesses and where the companies do business could all are to be considered by the Court. The Court should have regard to the interest of all the parties and to meet the ends of justice and to allow the plaintiff to keep the benefit of the security obtained by commencing the proceedings and allow proceedings before a forum where practical justice should be done. The practical justice demands that the plaintiff is not to be deprived of having started the proceedings within limitation. Despite an exclusive jurisdiction clause, the Court can refuse a stay of proceedings, if exceptional circumstances amounting to strong cause are shown. While the Court should in coming to its decision, take into account all the circumstances of a case. In exercising its discretion the Court should take into account all the circumstances of the particular case including the probability that the plaintiff would be prejudiced by having to sue in the foreign Court because he would be deprived of security for his claim and would be unable to enforce any judgment obtained. Quite the reverse, the defendant must satisfy the Court that there is another forum to whose jurisdiction he is amenable in which justice can be done between the parties at substantially less inconvenience or expense and stay must not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of some other Court. In exercise of Admiralty Jurisdiction, this Court can exercise jurisdiction over all ships whether Pakistani or not and whether registered or not and wherever the domicile of their owners may be. The Admiralty Court can exercise jurisdiction in respect of all claims, causes and questions specified in the Ordinance wherever arising irrespective of the fact that the cause of action has arisen within the territorial jurisdiction of the Court or not and the parties are domiciled in a foreign country, an action in rem can be entertained. The jurisdiction of this Court in an independent jurisdiction conferred by law which cannot be ousted or drive out under Bills of Lading Act, 1856 or merely for the reason that some respondents have filed their suit in High Court of Justice, Queens Bench Division, Commercial Court, London which can be decided independently without any predominating or overriding effect on the pending suit in our local laws and jurisdiction. Here not only security has been furnished but some material orders have already been passed in the trial Court so in all fairness, the issues should be settled and parties may be afforded an opportunity to adduce evidence so that the pending suit may be decided on merits rather than lying dormant or hanging around without any lawful purpose and justification. In our consciousness we do not recognize that the continuance of the action in this Court would operate an injustice to the defendants. The defendants have also failed to make out a case that the plaint did not disclose a cause of action or that the suit is frivolous, vexatious and or oppressive to them or it amounts an abuse of process of the Court.

17. In the wake of above discussion, the impugned order is set aside with the directions to the learned single judge of this Court at Original Side to decide the Admiralty Suit No. 12/2012 on merits. In the end we also appreciate the assistance provided by the learned Amicus Curiae.

(Y.A.) Appeal allowed

PLJ 2021 Karachi 108 (DB)

Present: Muhammad Ali Mazhar and Agha Faisal, JJ.

MUHAMMAD JIBRAN NASIR and 5 others--Petitioners

versus

FEDERATION OF PAKISTAN through Secretary Cabinent Division and 5 others--Respondents

C.P. No. D-6382 and C.M.A No. 35721 of 2019, decided on 29.1.2020.

Sindh (Repeal) of Police Act, 1861--

----Ss. 13 & 17--Revival of Police Order, 2002 (Amendment) Act, 2019, S. 17(3), 15(3)--Constitution of Pakistan, 1973, Art. 199--Relieving and surrendering of services--Challenge to--Interim order-- Resuming of charge--Suspension of transfer order--Pre-condition of consultation with IG police--Independence and automonsy of I.G.--Violation of self-contained--Violation of express provisions of law--Larger public interest--Direction to--If niceties and nitty-gritties of Arts. 13 & 17 of Sindh (Repeal of Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019 are merely considered or meant for inter provincial transfers or postings alone and precondition of consultation with I.G.--Whole ideology of consultation would be frustrated and redundant--If violation of self-contained provision is allowed to be deflected or repelled at whims and caprices of Government then it will lead a situation to chaos and as and when any upright officer is found undesirable or unwanted (not involved in misconduct) then Government instead of adhering to provisions contained in Art. 13 & 17 or to avoid precondition of consultation due to apprehensive or foreseeable opposition of IG against transfer/ posting will directly surrender services which tantamount to a situation that what cannot be done directly cannot be done indirectly--No Federal Government Rotation Policy for PSP has been placed on record nor any letter has been produced to demonstrate that Establishment Division has ever called upon Sindh Government to surrender services of both officers but record reflects that correspondence was initiated by Government of Sindh--If exemption has been granted and accepted by owner land will be held by owner subject to those conditions, in either case, concept of ownership would not permit intervention of a third party into domain of enjoyment of land by owner--Making good laws by corridors of power in public interest is so virtuous and a good deed but if laws are not implemented in its letter and spirit with interest of bringing some improvements and or revamping or restructuring any institution then situation obviously leads to lawlessness and turmoil affecting public at large-- Ad-interim order for suspending operation of notification with regard to surrendering services of and notification is hereby confirmed with directions that no decision for surrendering services and posting of AIG shall be made without meaningful consultation of Inspector General of Police, Sindh in terms of Art. 13 of Sindh (Repeal of Police Act, 1861 & Revival of Police Order, 2002) (Amendment) Act, 2019--Furthermore posting of Superintendent of Police and Assistant or Deputy Superintendent of Police shall only be made by Inspector General of Police within parameters of Art. 17 of Sindh (Repeal of Police Act, 1861 & Revival of Police Order, 2002) (Amendment) Act, 2019--Petition accepted.

[Pp. 118, 119, 121, 122 & 123] A, B, C, D, E, F, G & H

AIR 1989 AP 51 and 2017 MLD 785 ref.

Mr. Faisal Siddiqui, Advocate for Petitioners.

Mr. Salman Talibuddin, Advocate General Sindh along with M/s. Jawad Dero and Ghulam Shabbir Shah, Additional Advocate General Sindh.

Mr. Zulfiqar Mahar, AIGP (Legal) along with Mr. Raza Mian and Mr. Akbar Ali, DSP (Legal).

Date of hearing: 24.12.2019.

Order

Muhammad Ali Mazhar, J.--Quintessentially, the petitioners have entreated for declaration inter alia that the consultation with the Inspector General of Police under Article 13 of the Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019 for posting of Additional Inspector General of Police and Deputy Inspector General of Police is binding on the Government of Sindh. The Respondent No. 6 (IG) should act in accordance with the Judgment passed in C.P. No. D-7097/2016 and C.P.No. D-131/2017 vis-a-vis the appointments of Additional Inspectors General of Police and Deputy Inspectors General of Police. A request has also been made for the declaration inter alia that proviso attached to Article 15(1) and (3) of the Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019 is unconstitutional and also sought for implementation of some other provisions.

1. Notice on main constitution petition and interlocutory application moved (to restrain in general all transfer posting in police department during pendency of petition) was issued to the respondents. Sincevires of some provisions of Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019 are also under challenge therefore a notice was also issued to the Advocate General Sindh under Order 27-A, CPC. During pendency second injunction application (CMA No. 35721/2019) was also moved to stay transfer notifications of two police officials, therefore separate notice was also issued with ad-interim orders. The learned A.A.G filed the counter affidavit and shown some urgency hence putting aside the main petition awhile, the second injunction application was heard extensively so that its fate may be decided first.

2. The learned counsel for the petitioners argued that Khadim Hussain Rind, DIG was relieved and his services were surrendered to the Federal Government, however after suspension of the impugned Notification by this Court through Order dated 16.12.2019, he resumed his charge whereas Dr. Muhammad Rizwan Ahmed, SP was also relieved from his post and his services were also surrendered to the Federal Government but after suspension of his Notification, he has also assumed his charge.

3. It was further averred that impugned notifications were issued in violation of Articles 13 and 17 of the Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019. The entire subject matter is the interpretation of the new Police Act, 2019 in accordance with the judgment reported as PLD 2018 Sindh 8, especially in relation to matters of appointment and removal of police officers. In the earlier judgment reported as PLD 2018 Sindh 8, numerous notifications related to multiple officers of the Sindh Police were set aside by this Court on the ground of the absence of the consent of the IG, even though, none of those officers were a party to the petition and even then the illegal notification transferring those non-parties were set aside. Reading of Rule 8 (i), Entry 10 of Schedule VI, Sindh Government Rules of Business, 1986, shows that Entry No. 10 has nothing to do with the power of the Chief Minister to relieve or surrender Federal Officers but is strictly limited to only three categories: (i) conditions of service, (ii) promotion and (iii) disciplinary action of federal officers. If the interpretation of the Government of Sindh is accepted that relieving of service or surrender of service is not removal or transfer, then the entire powers and autonomy of the IG regarding transfer and posting can be subverted and sabotaged by simply the removal of police officers appointed with consent of the IG by camouflaged such removals as relieving of service or surrender of service. The new Police Act, 2019, guarantees total autonomy of IG in operational, administrative and financial matters and such a meaning of surrender of services as given by the Sindh Government will destroy such autonomy completely. In the earlier Petition reported as PLD 2018 Sindh 8, this Court has also dealt with the surrendering of services to the Federal Government in relation to the removal of the IG. The aforementioned Judgment makes no distinction between surrendering of services and removal/transfer.

4. It was further avowed that two letters dated 02.11.2018 and 26.11.2018 available at pages 1235-1237 of the Court file relied upon by the Government of Sindh are irrelevant for the reasons that these letters were issued much before the coming into force of the New Police Act, 2019. It was further contended that under Article 17(3) of the New Police Act, 2019, the removal of SP on the ground of misconduct is the sole power of the IG as compared to the removal of the DIG of a range and SSP of a district under Article 15(3) which requires the consent of the Government of Sindh. It is not denied by the Sindh Government that there was no consent of the IG to remove Mr. Rizwan. There is no provision in law which simply allows the removal of a PSP officer by the Government of Sindh on the request of another province. Even otherwise, no document has been placed to show that the Establishment Division, Federal Government has made any request for repatriation of DIG.

5. The learned Advocate General Sindh argued that so far as the main petition is concerned, he has no objection to the maintainability but according to him application for interim relief seeking suspension of the transfer orders i.e. annexure A and annexure A-1 attached to CMA No. 35721/2019 is not maintainable. He further argued that the application is supported by the affidavit of Petitioner No. 1 who has no right and authority to move such an application. He further argued that Articles 13 and 17 of the Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019 are only related to inter provincial transfer of PSP. The present case is not related to inter provincial transfer but relates to surrendering the services of DIG and SP to the Establishment Division.

6. He further argued that the issue involved in the second stay application purely relates to terms and conditions of PSP officers, jurisdiction of which, by virtue of the provisions of Article 212 of the Constitution of Pakistan, 1973, vests in the Federal Service Tribunal, therefore, the stay application is liable to be dismissed. The law with respect to practice and procedure of adjudication appears to be settled and it was held in PLD 2003 S.C. 979 that what is not permitted to be done directly cannot be achieved through circumvention of law by indirect means. He further argued that any decision rendered on the stay application would affect CP No. D-8099/2019 pending in this Court where relief sought is identical to the relief sought in the stay application which was adjourned with the directions to the advocate to assist on the maintainability of the petition as the petitioner is not aggrieved person.

7. It was further averred that that right from the commencement of surrendering proceedings of said PSP officers, the I.G was duly apprised of all the development and every step taken was in the knowledge of I.G. It is inconceivable to allege that surrendering of services were sudden and unplanned or that I.G came to know it through media reports. The power to surrender PSP officers serving in the Province of Sindh, pursuant to Rule 8 read with item 10 of Schedule VI of the Sindh Government Rules of Business, 1986, vests in the Chief Minister of Sindh. The whole proceedings were carried out in accordance with the Sindh Government Rules of Business, 1986. The learned Advocate General Sindh made much emphasis that even under the extended doctrine of locus standi under the public interest litigation, a stranger cannot challenge the validity of Government orders. He further argued that constitutional jurisdiction of this Court is required to be exercised carefully to promote public interest and not to entertain speculative or malicious attacks to block or suspend the performance of executive functions by the Government. The petitioners have failed to show that they are litigating in public interest and for public good and for welfare of general public. He further argued that to invoke constitutional jurisdiction of this Court, a person is required to first qualify test of being aggrieved person and then to show that his case fell in any of the categories so defined by Article 199 of the Constitution that there was no alternate legal remedy except the petition. The learned Advocate General Sindh referred to case of Balochistan Medical Association vs. Government of Balochistan and others (2017 CLC 1195), Javed Ibrahim Paracha vs. Federation of Pakistan and others (PLD 2004 S.C. 482), Premier Battery Industries Private Limited vs. Karachi Water and Sewerage Board and others (2018 SCMR 365), and Kasani Narayana vs. Government of A.P. and others (AIR 1989 Andhra Pradesh 51).

8. Heard the arguments. The bone of contention is an act of relieving and surrendering the services of DIG and SP to the Establishment Division, Government of Pakistan vide Annexure A and A-1. The petitioners have also attached a letter dated 10.12.2019 which was communicated by the Inspector General of Police, Sindh to the Chief Secretary for raising objections that the services of said officers were surrendered without his consultation. I.G in his letter further stated that DIG was supervising extremely important matters of police establishment including recruitment against vacant positions, promotions in upper subordinate ranks and implementation of career and rotation plans in Sindh Police, whereas, SP, Shikarpur was leading some operation against dacoits. He was also working on some clues related to incident of killings of police officers by notorious dacoits in remote areas. He protested that sudden and unplanned transfers came as a surprise to him through media which will not only affect working of police department but also create an environment of uncertainty amongst police officers. I.G in his letter also reminded the judgment of this Court that the Inspector General must have independent control over postings and transfers. He also referred to the provisions of Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019 requiring consultation of I.G in transfer and posting matters of police officers.

9. For the purpose of deciding this interlocutory application, Articles 13 and 17 of the Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019 are quite relevant which are reproduced as under:

10. Posting of Additional Inspectors General of Police or Deputy Inspector General of Police.

11. The Government may post such number of Additional Inspectors General of Police and Deputy Inspectors General of Police to assist the, Inspector General of Police and Additional Inspector General of Police, as the case may be, in the efficient performance of duties as it may deem fit, in consultation with the Inspector General of Police or Additional Inspector General of Police, as the case may be.

12. Posting of Superintendent, Assistant Superintendent, Deputy Superintendent.--(1) The Inspector General shall post Superintendent of Police and Assistant or Deputy Superintendent of Police.

(2) The term of office of Superintendent of Police and Assistant or Deputy uperintendent of Police shall be as may be prescribed.

(3) Under exceptional circumstances, due to exigency of service or on rounds of misconduct and inefficiency which warrant major penalty under the relevant rules, the Superintendent and Assistant or Deputy Superintendent may be transferred before completion of the term of office.

1. Though Article 15 of the Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019 is also related to the posting of Deputy Inspector General of Police and Senior Superintendent of Police however, by means of this petition, a proviso attached to sub-Article (1) and sub-Article(3) are also under challenge. The proviso put together sub-Article (1) set forth that in case the Chief Minister and Inspector General, after a process of meaningful consultation do not reach any consensus, the Inspector General shall propose three names to the Chief Minister who shall approve one of them for posting as Deputy Inspector General of Police of a Range or Senior Superintendent of Police of a District, as the case may be. The next sub-Article(3) which is also under challenge elucidates that under exceptional circumstances, due to exigency of service or on grounds of misconduct and inefficiency which warrant major penalty under the relevant rules, the Deputy Inspector General of Police and Senior Superintendent of Police may be transferred, with the approval of the Government, before completion of the term of office.

2. At the dictates of this order, obviously, we cannot come to a decision of main petition which was not argued tout in view of urgency pleaded by the learned AG, both learned counsel elected to argue second injunction application only, therefore, we have to be confined within the prescient and equilibrium of injunction application alone. It is well settled exposition of law that even for deciding the application in the writ jurisdiction, the elementary principle for making out a prima facie case cannot be ignored or ruled out. The Act of 2019 was promulgated to repeal Police Act, 1861 and Revival of Police Order, 2002 with the intellect and prudence that the police has an obligation and duty to function according to the Constitution, law and democratic aspiration of the people; the functioning of police requires it to be professional, service-oriented and accountable to the people so it was found expedient to redefine the police role, its duties and responsibilities and to reconstruct the police service for efficient prevention and detection of crime and maintenance of public order. Under the definition clause of Article 2 (vii-a), the term "ex-officio secretary" has been depicted as under:

"(vii-a) "ex-officio Secretary" means Inspector General of Police who shall exercise administrative and financial powers of the Secretary to the Provincial Government with operational, administrative and financial autonomy in matters pertaining to Police subject to the policy, oversight and guidance given by the Chief Minister through the Chief Secretary and the Provincial Home Department."

Whereas in clause (xxvi-a), the term "superintendence" has been defined which is reproduced as under: -

"(xxvi-a) 'superintendence' means supervision of Police by the Chief Minister through the Chief Secretary and Home Department while ensuring total autonomy of the Inspector General of Police in operational and financial matters."

In unison, Article 9 represents and incarnates that Superintendence of Police shall vest in the Government which shall be exercised as to ensure that police performs its duties efficiently and strictly in accordance with law whereas Article 10 pertains to the administration of police in which police area shall vest in the Inspector General of Police, Additional Inspector General of Police, Deputy Inspector General of Police and Senior Superintendent of Police as the case may be. According to sub-Article (4) it is the responsibility of the Inspector General of Police to prepare a provincial annual policing plan for review by the Provincial Public Safety and Police Complaints Commission which shall include objectives of policing; financial resources likely to be available during the year; targets; mechanism for achieving these targets and key performance indicators and performance measurement criteria.

1. The learned Advocate General Sindh enthusiastically argued that this is not a case of transfer but surrendering the services to the Establishment Division, Government of Pakistan. He also quoted Rule 8 of the Sindh Government Rules of Business, 1986 amended up to 11.11.2019 which emphasizes and draws attention that the cases enumerated in Schedule-VI shall be submitted for approval of the Chief Minister and at one fell swoop, he also pointed out entry No. 10 in the Schedule VI crafted pursuant to Rule 8, the gist or nucleus of this entry exemplifies the instances of matters related to the conditions of service, promotion or disciplinary action against members of Federal Services or holders of appointment normally held by them and before making reference to the Federal Government, this should be shown to the Chief Minister before final orders are issued. In our considered view, this rule has no direct application with regard to the plea of surrendering of service by the Sindh Government of the aforesaid officers to the Establishment Division, Government of Pakistan as these powers are confined vis-a-vis the reference to the Federal Government with the concurrence of Chief Minister for something else and not for surrendering services of PSP officers. On one hand, learned Advocate General argued that there is no need of any consultation with the Inspector General while surrendering the services as this cannot be construed interprovincial transfer or posting but quite the reverse, he vigorously argued that while deciding to surrender the services, the Inspector General was consulted and taken on board. He further relied on the inquiry report in Crime No. 24/2019 P.S. Sultankot, District Shikarpur that the SP district Shikarpur was involved in registering false cases and inquiry report is revealing the recommendation for initiation of departmental proceedings against SHO P.S. Sultankot for poor and unprofessional handling of situation and registration of defective FIR and SSP was advised to closely monitor such incidents and supervise investigations to prevent such injustice in future.

2. In contrast, the learned counsel for the petitioner had drawn our attention to the letters dated 02.11.2018 and 26.11.2018. The learned counsel argued that "The Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019" was notified on 26.06.2019 and both aforesaid letters were written prior to the promulgation of Act when no provision for IG consultation was prevailing but it was incorporated in the 2019 Act. However, the I.G, vide letter dated 29.10.2019 communicated to the Chief Secretary, Sindh that there is already shortage of BS-20 PSP officers in Sindh Police and Khadim Hussain Rind, DIG is working on certain important initiatives and on-going tasks, therefore, his services are required to the Sindh Police and he made a request for cancellation of letter. Again vide letter dated 10.12.2019, I.G. Sindh shown his concern to the Chief Secretary that he came to know the sudden surrender of services of DIG to the Establishment Division through media. The line of argument progressed by the learned Advocate General seems to be mutually destructive that for surrendering the services no consultation is required but in juxtaposition he argued that the services were surrendered with the consultation of I.G. which assertion was denied by I.G in his letter. He further argued that one more C.P. No. D-8099 of 2019 has been filed by some other persons against the transfer of the same persons and another learned Division Bench of this Court raised the question of maintainability that how petitioner is an aggrieved person. To fight back, the learned counsel for the petitioner responded that the present petitioners have nothing to do with the said petition. The petitioners in the course of instant petition have challenged the vires and also sought the effective implementation of 2019 Act and if any other petitioner has challenged the transfer it does not create any impediment or embargo against the present petitioners.

3. The Judgment rendered by the learned Division Bench of this Court in the case of Karamat Ali vs. Federation of Pakistan (PLD 2018 Sindh 8) depicts that the petitions were filed in the public interest and the judgment is deciphering straightforward articulations that High Court has plenary powers to positively enforce fundamental rights. The proper policing and an efficient and effective police force have a connection with many and perhaps most fundamental rights. The fundamental rights are best enjoyed in an environment where the rule of law is respected and properly enforced and the rule of law is in essential part dependent on the law and order situation which in turn depends on effective policing. The most basic of fundamental rights that of life and liberty enshrined in Article 9 is dependent on proper and effective policing for its proper enjoyment. It is, therefore, clear that in appropriate circumstances it may be necessary to make orders and give directions in respect of policing and the police force in terms of Article 199, and in particular under clause (1)(c) to ensure the proper enforcement of fundamental rights. The police force must have autonomy of command and independence of operation. The Court further held that autonomy and independence will bring stability and balance to the organizational structure of the police force by curbing and reducing and ideally eliminating the farcical frequency of turnover, transfers and postings that now plague the system. The police hierarchy, acting through the Inspector General, must have control over its own affairs especially insofar as postings and transfers are concerned. The judgment of this Court was challenged by the Government of Sindh in the Supreme Court and vide Judgment dated 22.03.2018 Civil Appeals No. 148 to 150 of 2018 were dismissed. The relevant portion of the Judgment is reproduced as under:

"9. On the foregoing analysis, we affirm the impugned judgment by the leaned High Court in particular with reference to the autonomy of command and independence of operation of the Police Force governed by the Police Act, 1861. We also uphold a tenure to be attached to PSP senior cadre posts in the Province of Sindh, of which the IGP is a , principal officer. Transfers and postings on all senior cadre posts shall be made by order of the IGP pursuant to transparent rules framed under Article 12 of the Police Act, 1861 framed in consultation with the Provincial Government. It is also declared that "Police" is concurrently subject to the legislative and executive competence of the Federation and the Provinces in the relation to the matters covered by Article 142(b) and Article 240 of the Constitution. For securing integrity, competence, diligence in and accountability for Police performance, the Federation may consider framing a law setting out uniform criteria of appointment on senior cadre posts, their independence of operation, security of tenure, performance assessment and accountability for incompetence, negligence or dishonesty. Meanwhile, it is necessary that the Federal Government and Provincial Government to collaborate in the matter of appointments, transfers of police personnel on senior cadre posts and in any event with respect to crime prevention, detection and investigation as well as prosecution and punishment of criminal offenders in the Province."

16. In our good judgment, if the niceties and nitty-gritties of Articles 13 & 17 of the Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019 are merely considered or meant for inter provincial transfers or postings alone and precondition of consultation with I.G. is narrowed down or deemed to be confined in this limited sense then the independence and autonomy of the I.G. office cannot be maintained which would also in negation and renunciation of the judgment passed by this Court supra which was affirmed by the apex Court in particular with reference to the autonomy of command and independence of operation of the police force governed and also upheld the tenure attached to PSP senior cadre posts in the Province of Sindh of which the IGP is a principal officer. It was further held that the transfers and postings on all senior cadre posts shall be made by order of the IGP pursuant to transparent rules.

17. If the Government will exercise powers under the assumption or guesswork that for surrendering services to the Establishment Division, Government of Pakistan, the consultation with IG is not required then this would amount to circumvention and sidestepping the unequivocal provisions of the Sindh (Repeal of the Police Act, 1861 and Revival of Police Order, 2002) (Amendment) Act, 2019. The whole ideology of consultation would be frustrated and redundant. In our sight, if violation of self-contained provision is allowed to be deflected or repelled at the whims and caprices of Government then it will lead a situation to chaos and as and when any upright officer is found undesirable or unwanted (not involved in misconduct) then Government instead of adhering to the provisions contained in Articles 13 & 17 or to avoid precondition of consultation due to apprehensive or foreseeable opposition of IG against the transfer/posting will directly surrender the services which tantamount to a situation that what cannot be done directly cannot be done indirectly. The eventual and ensuing effect of surrendering services of DIG means the transfer of an officer from his last place of posting with posting of new incumbent. In our outlook Article 13 may not be treated only for interprovincial posting or transfer but surrendering of service without adverting to meaningful consultative process has direct effect and nexus with transfer and posting so without meaningful consultation the services of PSP officers cannot be surrendered, otherwise the meticulous provision premeditated and thought-out to safeguard the independence of IG office and its autonomy for running the administration of police in the province effectively in order to improvise the performance and maintain law and order situation would be superfluous or redundant. No Federal Government Rotation Policy for PSP has been placed on record nor any letter has been produced by the learned A.G to demonstrate that the Establishment Division has ever called upon Sindh Government to surrender the services of both officers but the record reflects that correspondence was initiated by Section Officer, Services General Administration and Coordination Department, Government of Sindh.

18. The learned Advocate General cited following judicial precedents:

1) 2017 CLC 1195 (Balochistan Medical Association vs. Government of Balochistan and others). To invoke Constitutional jurisdiction of High Court, one was required to first qualify test of being aggrieved person and then to show that his case fell in any of the categories so defined by Art.199 of the Constitution that there was no alternate legal remedy except the petition. To satisfy requirements of an aggrieved person in public interest litigation under Art.199 of the Constitution, petitioner was required to disclose a personal interest in performance of legal duty owed to him which if not performed would result in loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise

2) PLD 2004 S.C. 482 (Javed Ibrahim Paracha vs. Federation of Pakistan and others). No doubt with the development of new concept of public interest litigation in the recent years, a person can invoke the Constitutional jurisdiction of the superior Courts as pro bono publico but while exercising this jurisdiction, he has to show that he is litigating, firstly, in the public interest and, secondly, for the public good or for the welfare of the general public.

3) 2018 SCMR 365 (Premier Battery Industries Private Limited vs. Karachi Water and Sewerage Board and others). The scope and parameters of public interest litigation does not strictly fall under any part of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. However, it has received judicial recognition enabling the Courts to enlarge the scope of the meaning of 'aggrieved person' under Article 199 of the Constitution to include a public spirited person who brings to the notice of the Court a matter of public importance requiring enforcement of Fundamental Rights.

4) AIR 1989 Andhra Pradesh 51 (Kasani Narayana and others vs. Government of A.P. and others). Even the extended doctrine of locus standi under the public interest litigation would not enable a stranger to challenge the validity of a Government Order, such as the one which has been issued in this case. The effect of the Government Order is merely to grant exemption in relation to the excess land subject to certain conditions. If the exemption is refused, the land would have been treated as vacant land and acquired by the Government. If the exemption has been granted and accepted by the owner the land will be held by the owner subject to those conditions. In either case, the concept of ownership would not permit the intervention of a third party into the domain of enjoyment of the land by the owner. (emphasis applied) The Court referred to the case of Soma Venkateswara Rao v. The Government of Andhra Pradesh, (1987) 2 Andh LT 957 in which the Court held as under:

"No objection raised to the maintainability of a writ petition on the ground that the petitioner is not an aggrieved person should be summarily rejected. That is so even after the entry of that much misunderstood concept of public interest litigation into the field of our Constitutional Jurisprudence which ex-Chief Justice Hidayatullah once openly condemned rather harshly as no more than publicity interest litigation. The reason why such objection deserves serious consideration is that principle of locus standi and the doctrine of aggrieved persons are the very foundations on which the edifice of Judicial Process is erected... The doctrines of locus standi and aggrieved persons embody in themselves some aspects of that great fundamental constitutional principles of separation of powers. That strict observance of these ground rules is of so paramount importance that their violations can easily lead to loss of judicial credibility and effectiveness. The constitutional train can reach safely and surely to its destination moving only on those rails. It follows that even under the public interest litigation the Courts should not and ought not rush in where the Constitutional principles shudder to enter. The Court's jurisdiction is to render justice to conflicting parties. The law is declared by the Courts in that process only to settle the dispute before the parties. Where 'A' in free exercise of his will allows the State to acquire his land, the Courts will not hear the complaint of 'B' against such acquisition on the ground of constitutional violations. The Courts can hear the complaints only of an aggrieved person but not that of a busy body or a legal vagabond."

19. We glanced at the precedents cited by the learned Advocate General. In the case of Balochistan Medical Association (supra), the learned Division Bench of Balochistan High Court held that to satisfy the requirement of an aggrieved person in public interest litigation under Article 199 of the Constitution, the petitioner was required to disclose a personal interest in performance of legal duty owed to him which if not performed would result in loss of some personal benefit or advantage or curtailment of a privilege in liberty or franchise. In the present case, the petitioners have approached this Court for challenging the vires of law in the larger public interest as well as to restrain the government not to violate the express provisions of law. Learned A.G also relied on the case of Javed Ibrahim Paracha (supra) in which the apex Court discussed the concept of public interest litigation that the petitioner has to show that he is litigating in the public interest and secondly for the public good. The petitioners before us have approached as probono publico and in the general public interest. In the case of Premier Battery Industries (supra) the apex Court held that the judicial recognition enabling the Courts to enlarge the meaning of aggrieved person under Article 199 of the Constitution to include a public spirited person who brings to the notice of the Court a matter of public importance requiring enforcement of Fundamental Rights. Whereas in the case of Kasani Narayana (AIR 1989 AP 51) the High Court of Andhra Pradesh held that the doctrines of locus standi and aggrieved persons embody in themselves some aspects of fundamental constitutional principles of separation of powers. That strict observance of these ground rules is of so paramount importance that their violations can easily lead to loss of judicial credibility and effectiveness. The constitutional train can reach safely and surely to its destination moving only on those rails. It follows that even under the public interest litigation the Courts should not and ought not to rush where the Constitutional principles shudder to enter. The facts and circumstances of the case in hand and the case cited by the learned A.G are entirely different where the effect of Government order was merely to grant exemption in relation to excess land subject to certain conditions, therefore, the Court held that if the exemption has been granted and accepted by the owner the land will be held by the owner subject to those conditions, in either case, the concept of ownership would not permit the intervention of a third party into the domain of enjoyment of the land by the owner. By this judgment, the Andhra Pradesh High Court does not mean to say that the public interest litigation is barred or foreign in their jurisdiction.

20. In the perspective of every citizen and public at large, the good police or bad police both really carry some weight and importance. It is the major responsibility of State to eliminate and eradicate the crime, provide protection to person and property and in order to perform these fundamental responsibilities good policing is necessary which can only be possible if good police officers are posted on merits and allowed to combat against crimes and social evils with accountability but not on basis of sifarish, favoritism or nepotism or with abrupt removal from place of posting with preconceived notion or confrontation and hostility which creates uncertainty. En masse, police is answerable to the people and the law. The honesty, integrity, nice behavior and sober mannerism must be part of ethical practice which is quite essential for good policing and good police officers. They must not only be upright officers but also good citizens as well and should have the audacity and nerve to listen all persons equally especially to those without social power or status. The everyday job of police include enforcement of laws, prevention of crimes, protection of person and property, investigation of crimes and to respond emergency calls. Making good laws by the corridors of power in the public interest is so virtuous and a good deed but if laws are not implemented in its letter and spirit with the interest of bringing some improvements and or revamping or restructuring any institution then situation obviously leads to lawlessness and turmoil affecting public at large. The learned A.G argued that the officers whose services were surrendered or transferred have not approached this Court so the petition is barred under Article 212 of the Constitution. To this argument, we must articulate in commonsensical, why the petitioners have come to this Court? Nothing alleged that they are relatives or well-wishers of said two police officers and want to shield their transfers for self-benefits or motivation. No personal bias or mala fide is alleged or argued against them in the counter affidavit. The learned A.G in his arguments did not oppose the maintainability of the main petition but interlocutory application alone which is ancillary and incidental to main proceedings. On the contrary, the nucleus in its entirety is whether the niceties of Article 13 should be kept in mind while surrendering the services of DIG and posting another officer in his place, the consultation of I.G Sindh is mandatory or not? and whether I.G may post Superintendent of Police and Assistant or Deputy Superintendent of Police without interference in terms of Article 17 or not? We cannot oust or non-suit the petitioners who have challenged the vires of law and aggrieved by the violation of express provisions of law. Seemingly, they have not approached to safeguard any individual or individual interest but the enforcement and dictates of law which they can do even in the genre of whistle blower which concept has been discussed

in detail in the case of 2017 MLD 785 (Al-Tamash Medical Society vs. Dr. Anwar Ye Bin Ju and others). [Authored by one of vs (Muhammad Ali Mazhar, J)] that US civic activist Ralph Nader coined the phrase whistle blower but he in fact put a positive spin on the term in the early 1970s to avoid the negative connotations found in other words such as "informers" and "snitches". A whistleblower is a person who exposes any kind of information or activity that is deemed illegal, unethical, or not correct within an organization that is either private or public. The information of alleged wrongdoing can be classified in many ways i.e. violation of company policy, rules, law and regulations and or threat to public interest, national security as well as fraud, and corruption. Those who become whistleblowers can choose to bring information or allegations to surface either internally or externally.

21. As a result of above discussion, the ad-interim order passed by us on 16.12.2019 for suspending the operation of notification dated 15.10.2019 with regard to the surrendering the services of Mr. Khadim Hussain Rind, DIG Police and the notification dated 06.12.2019 with regard to Muhammad Rizwan Ahmed Khan, SP District Shikarpur is hereby confirmed with the directions that no decision for surrendering the services and posting of Additional Inspector General of Police or Deputy Inspector General of Police shall be made without meaningful consultation of Inspector General of Police, Sindh in terms of Article 13 of the Sindh (Repeal of the Police Act, 1861 & Revival of Police Order, 2002) (Amendment) Act, 2019. Furthermore the posting of Superintendent of Police and Assistant or Deputy Superintendent of Police shall only be made by the Inspector General of Police within the parameters of Article 17 of the Sindh (Repeal of the Police Act, 1861 & Revival of Police Order, 2002) (Amendment) Act, 2019. Application is disposed of accordingly.

(Y.A.) Petition accepted

PLJ 2021 Karachi 123

Present: Salahuddin Panhwar, J.

MUHAMMAD AZAM KHAN--Petitioner

versus

Dr. IQBAL HAMEED and 2 others--Respondents

C.P. No. S-2609 and C.M.A No. 10538 of 2018, decided on 13.8.2020.

Constitution of Pakistan, 1973--

----Art. 199--Ejectment petition--Accepted--Suit for specific performance by tenant--Constitutional petition--Sole owner--Litigation between parties--Default in payment--Suit property was also subleted by tenant--Personal bona fides need--Plea of res-judicata--Selection of business--Progative of landlord--Fresh cause of action--Direction to--Learned counsel for petitioner contends that earlier to this eviction application respondent's father and mother also preferred same nature of applications but both were dismissed, hence, resjudicata will apply to present respondent, who is son and being legal heir he also represents his parents--It is by now settled that selection of business is sole prerogative of landlord so also choice of rented shop, if having more than one--Failure of a landlord in earlier eviction proceedings would not be of sufficient to bring plea of resjudicata proves his 'personal bona fide need' with reference to changed circumstances i.e 'new cause of action--Such plea is even misconceived for simple reason that referred earlier proceedings were launched by father of respondent/ applicant who, undeniably, is dead thereby making his legal heirs, including respondent/applicant as one of co-owner/co-sharer and other legal heirs have given no objections to present landlord though legally, in rent jurisdiction; every co-owner has a right to agitate plea of personal bonafide need irrespective of fact that tenancy, created by other co-sharer because legally every co-sharer has his/her own circumstances hence legally shall have a right to establish plea of personal bonafide need in respect of such premises--Instant proceedings, initiated by respondent/applicant, is with reference to an independent and fresh cause of action, who is admittedly landlord so was rightly discussed by appellate Court--However, petitioner is satisfied if instant petition is disposed of with directions that he may be allowed to evict demised premises within six months with rider that in case respondent fails to establish his business within four months, he will return same--In case of failure, petitioner/tenant shall be got evicted from demised premises by approaching Rent Controller without any notice or further time--However, in case, respondent fails to establish his business, he will return demised premises to tenant--Petition was disposed of. [Pp. 126 & 127] A, B, C, D, E & F

2010 SCMR 1925, 2017 CLC Note 80, 1999 SCMR 348 and 2002 SCMR 429 ref.

Syed Fazal-ur-Rehman, Advocate for Petitioner.

Mr. Mehboob Aftab Khan, Advocate for Respondent No. 1.

Date of hearing: 13.8.2020.

Order

This petition is filed by petitioner (tenant) against order dated 20.11.2018 passed by Additional District Judge III, Karachi South (Respondent No. 2) in FRA No. 225/2016 filed by petitioner against order of ejectment dated 30.09.2016 passed by Senior Civil Judge Rent Controller concerned (Respondent No. 3) in Rent Case No. 423/2014 in favour of Dr. Iqbal Hameed (Respondent No. 1). Concisely, facts of the case are that Respondent No. 1 (landlord) filed ejectment application in respect of Shop No. 194, Super Market Building, Cooperative Market, Abdullah Haroon Road, Saddar, Karachi, contending therein that his late father Hameedullah Khan being sole owner, inducted opponent's father Muhammad Naeem Khan (now deceased) as tenant in said shop; that there were litigations between the parties; that opponent's father became dishonest and prepared forged documents alleging that the property was sold out to him and filed Civil Suit No. 1949/1996 (old Suit No. 1077/1990) against Hameedullah, for specific performance, which was dismissed by judgment and decree dated 23.12.2006, appeal filed was also dismissed; that legal heirs of deceased tenant committed default in payment of rents since 1980, they have also sublet the property; that applicant is qualified MBBS doctor retired from civil services and needs demised shop for his own personal use to run his own suitable business therein.

1. Heard learned counsel for respective parties, perused the record.

2. At the outset, paragraph-11 of the impugned judgment is that:

"11. In this regard the Court perused the depositions found within the R & Ps brought from the trail Court wherein it is admitted by the respondent/applicant that he being the co-owner of the subject shop, and after the death of his mother, his brother and sister have also given consent in his favour, established his valid title in the property. The said co-ownership entitled has not been challenged in the present appeal. Moreover it has been admitted by the appellant that he had been depositing rent in the MRC after the death of the father of the applicant/respondent thus accepting the relationship of the landlord and tenant between them. Admittedly the respondent is retired person who is not currently doing any job. It has also been admitted on the both sides that it is the wife of the respondent/applicant who is doing job at Saudi Arabia and their children are getting education there. Admittedly the wife of the respondent is the sole bread earner of the family, whereas the respondent having no source of income at present. The contention raised by the learned counsel for the applicant that the respondent is of 70 years and has also not elaborated his intended nature of business, in my humble view could not restrict him from claiming the subject property for his personal use. Whereas the passport and Visas of the respondent/applicant and his family were also produced before trial Court, who observed that the Visa of the respondent/applicant was a non-employment Visa"

4. Learned counsel for the petitioner contends that earlier to this eviction application respondent's father and mother also preferred same nature of applications but both were dismissed, hence, resjudicata will apply to the present respondent, who is son and being legal heir he also represents his parents.

5. I do not find any substance in the plea of resjudicata, so raised by the learned counsel for the petitioner. The plea of resjudicata, I would add, would only e applicable in the rent jurisdiction if it is with reference to same ‘cause of action’. Here, it is worth explaining that in rent jurisdiction, the term 'cause of action' is subject to circumstances because it is the circumstances which, in fact, control the 'need' of a man. One, because of his circumstances, needs not be in need of doing any business but changed circumstances may compel him to do a business or even may compel him to part with failed business and to start a new one. This has been the reason because of which, it is by now settled that the selection of business is the sole prerogative of the landlord so also choice of rented shop, if having more than one. Reference is made to case of ShakeelAhmed & another v. Muhammad Tariq Farogh & others 2010 SCMR 1925.

"5……..It is well-settled principle of law regarding appreciation of evidence that the evidence adduced by the parties is to be read, evaluated and assessed as a whole, and the impact of the evidence of an individual witness is also to be gauged in the same manner. .... Here it may also be observed that the selection of business is the sole prerogative of the landlord so also choice of rented shop, if having more than one, and therefore no restriction can be imposed upon the landlord/ appellant No. 1 on the pretext of restoration of his clearing and forwarding license during the pendency of rent case."

Thus, I would not hesitate in adding that failure of a landlord in earlier eviction proceedings would not be of sufficient to bring the plea of resjudicata if he, otherwise, proves his 'personal bona fide need' with reference to changed circumstances i.e 'new cause of action'.

6. In the instant matter, such plea is even misconceived for simple reason that referred earlier proceedings were launched by father of the respondent/ applicant who, undeniably, is dead thereby making his legal heirs, including the respondent/applicant as one of the co-owner/co-sharer and other legal heirs have given no objections to the present landlord though legally, in the rent jurisdiction; every co-owner has a right to agitate the plea of personal bonafide need

irrespective of fact that tenancy, created by other co-sharer because legally every co-sharer has his/her own circumstances hence legally shall have a right to establish the plea of personal bonafide need in respect of such premises. Reference may be made to Imran Qadir v. Roqiya Sultana and 7 others 2017 CLC Note 80 wherein it is observed as:

"Any of the co-sharers may file a rent case against the tenant irrespective of the fact that some other co-sharers had inducted the tenant in the tenement. (Abdul Ghani v. Abrar Hussain 1999 SCMR 348 & Muhammad Hanif and others v. Muhammad Jameel and 5 others 2002 SCMR 429)."

therefore, instant proceedings, initiated by the respondent/applicant, is with reference to an independent and fresh cause of action, who is admittedly landlord so was rightly discussed by the learned appellate Court in its impugned judgment. However, learned counsel for the petitioner is satisfied if instant petition is disposed of with directions that he may be allowed to evict the demised premises within six months with rider that in case respondent fails to establish his business within four months, he will return the same. Accordingly, instant petition is disposed of along with listed applications with directions to the petitioner that he shall handover the possession of demised premises within six months from today. In case of failure, the petitioner/tenant shall be got evicted from demised premises by approaching the Rent Controller without any notice or further time. However, in case, respondent fails to establish his business, he will return the demised premises to the tenant with fine of Rs. 50,000.

1. With regard to arrears along with utility bills, if any, executing Court would be competent to decide the same. This, however, shall not prejudice to eviction of petitioner within stipulated period, as undertaken as well his right of seeking restoration of possession, if respondent fails to establish his business within stipulated period.

(Y.A.) Petition disposed of

PLJ 2021 Karachi 127 (DB)

Present:Muhammad Ali Mazhar and Arshad Hussain Khan, JJ.

ABBU HASHIM and another--Petitioners

versus

FEDERATION OF PAKISTAN through Secretary M/O. Interior and 3 others--Respondents

C.P. No. D-1761 of 2020, decided on 10.4.2021.

National Data Base and Registration Authority Ordinance, 2000--

----S. 18--Constitution of Pakistan, 1973, Art. 199--Issuance of show-cause notice--Blocking of CNIC--Power to cancel CNIC--Abusement of process of law--Quashment of show-cause notices--Petitioners were involved in any offense or their CNIC were blocked under some Court’s order or some suspicious amount is said to have been parked in their accounts through unverified source or they are suspected of any money laundering case--Nothing was produced by counsel for NADRA that any complaint was received against petitioners that they were ineligible to obtain CNIC or there was any agency report against them whereby their cases were treated to be complex cases and referred to DLC--Neither NADRA could demonstrate any cogent justification that documents produced by petitioners are forged or manipulated nor NADRA could satisfy or expound any rationale as to why these documents are not acceptable to them nor it could be demonstrated by them that there were reasons to believe that petitioners secured documents including previous NICs and CNICs/passports/domicile on basis of some fraud or misrepresentation/impersonation, therefore, blocking of CNIC was unlawful--Both show cause notices are beyond bounds and precincts of Section 18 of NADRA Ordinance, 2000 and so also abuse of process of law, consequently, show cause notices are also quashed--Petition disposed of.

[Pp. 133, 134, 141, 143 & 144] B, C & D

PLD 2017 Sindh 585 and 2018 MLD 1748 ref.

National Database and Registration Authority Ordinance, 2000--

----S. 18--Power to cancel, impound or confiscate cards--A card issued under Ordinance shall be property of Federal Government and may, by an order in writing under seal of authority or an officer authorised by it in this behalf, be required to be returned and shall also be liable to be cancelled, impounded or confiscated by a like order. [P. 132] A

M/s. Salahuddin Ahmed, Muhammad Rizwan & Saifullah Abbasi, Advocates for Petitioners.

Ch. Muhammad Farooq and Ms. Samina Maqsood, Advocates for NADRA.

Mr. Kafeel Ahmed Abbasi, D.A.G. for State.

Mr. Hussain Bohra, Assistant Attorney General.

Dates of hearing: 13.10.2020 & 18.11.2020.

Order

Muhammad Ali Mazhar, J.--This petition has been brought to entreat declaration that the show cause notices dated 03.05.2017 issued by the Respondent No. 2 to the petitioners are without any lawful justification hence liable to be quashed. Directions have also been sought against NADRA to restore CNIC of the petitioners.

1. The ephemeral facts move forward by means of memo of petition are that the petitioners are citizens of Pakistan. Petitioner No. 1 was serving as an employee of the High Court of Sindh since 15.01.1997 and retired on 30.6.2019 in BPS-10. The Petitioner No. 2 is a spouse of Petitioner No. 1. The Respondent No. 2 issued Computerized National Identity Card (CNIC) and prior to the CNIC, the Petitioner No. 1 was issued manual NIC on 28.4.1982 which was renewed on 25.05.2001 due to change of address. The Petitioner No. 1 was issued Domicile of Karachi on 18.12.1998 from the Deputy Commissioner Karachi (South). He was also issued computerized passport on 28.10.2006 and earlier he was also issued manual Passport by Respondent No. 1. The Petitioner No. 1 was issued CNIC bearing No. 42201-0563449-8 on 1.2.2013 and prior to CNIC, the Petitioner No. 2 was also issued manual NIC on 7.2.1979. The petitioners received show cause notices dated 3.05.2017 from Respondent No. 2 that their CNICs have been blocked with the allegation that petitioners provided wrong information but no specific details were mentioned in the notices. The petitioners approached to the NADRA office and concerned staff gave them a form and instructed them to fill up the required details. The petitioners submitted all details’ and NADRA officials called them several times to answer queries and lastly on 25.11.2017 intimated them that their CNICs would be unblocked within a month. The Petitioner No. 1 never encountered any difficulties whilst using his CNIC for routine transactions but in the month of June, 2019 when the Petitioner No. 1 tried to withdraw money from his bank account, the staff of the bank informed him that he would need biometric verification to operate his account and when the Petitioner No. 1 attempted biometric verification, the Respondent No. 3 (HBL) informed him that his CNIC has been blocked and the bank is unable to perform any transaction. The petitioners served legal notices dated 4.9.2019 and 6.9.2019 and in reply, the petitioners were asked to report to the Zonal Office of NADRA for redressal of their grievance. On 10.10.2019 the petitioners met the Deputy Director NADRA who asked them to again fill the form for “verification of suspected/not traced persons and aliens”. The Petitioner No. 2 was also asked to submit relevant documents and affidavit of her brother Javed Iqbal containing details of all family members which was submitted on 17.10.2019. The petitioners approached pillar to post for redress but their CNICs were not restored.

2. The learned counsel for the petitioners in the aforesaid backdrop argued that the action of the respondents is illegal and against the fundamental rights of the petitioners. There is no provision under the National Database and Registration Authority Ordinance, 2000 for blocking of CNIC. Due to this illegality, neither the petitioners can travel outside country nor operate bank accounts which amounts to violation of fundamental rights guaranteed under Articles 9,14,15 and 18 of the Constitution of the Islamic Republic of Pakistan. It was further contended that the impugned notices, neither stipulated any reasons nor afforded any opportunity of hearing to the petitioners which is in violation of Article 10-A of the Constitution of Pakistan and Section 24-A of the General Clauses Act hence the same are liable to be quashed with the directions to NADRA to unblock the CNICs of the petitioners.

3. The learned counsel for the NADRA referred to the reply and argued that the petitioners remained fail to prove their National Status according to the Ministry of Interior Notification dated 19.4.2017. It was further averred that the Petitioner No. 1 obtained his first NIC on the basis of fake particulars in the year 1982 hence his case falls in doubtful category according to Notification of Ministry of Interior dated 19.4.2017 in which the petitioners are responsible to produce residential proof prior to 1978 in Pakistan for clearance of complex case therefore, show cause notices under Section 18 of NADRA Ordinance 2000 were served to provide fair opportunity for clearance but the petitioners failed to provide residential proof prior to 1978 and due to non- production of required documents, the Zonal Board of NADRA, recommended the cases to DLC for further investigation and verification of their National Status as per MOI notification datedi9.4.2017. He reiterated that NADRA is empowered to call proof from any citizen any time under Section 23, 18 of NADRA Ordinance 2000 read with Section 16-A of Pakistan Citizenship Act, 1951.

4. Heard the arguments. The nucleus of this petition is that on 03.05.2017, NADRA issued show cause notices under Section 18 of the National Database and Registration Authority Ordinance, 2000 in which it was stated that the petitioners obtained CNICs on wrong information and they were called upon to submit certain documents with the cutoff date 1978 which include title documents of some land prior to 1978. According to the petitioners time and again various documents were submitted for the consideration but no action was taken and ultimately legal notices were served upon the NADRA and thereafter this petition has been filed for the redress of petitioners’ grievance. In order to prove their bona fide, the petitioners have also attached certain documents with this petition. Annexure A/1 is the office order issued by Registrar of this Court on 18.03.2019 which demonstrates that the Petitioner No. 1 was performing his duties as Driver in BPS-10 and he was sanctioned his 365 days LPR with the retirement dated 30.06.2019 on attaining the age of superannuation. Annexure A-2 is the service card issued to him by the Sindh High Court Establishment. It is further contended that the Petitioner No. 2 was married to one M. Siddiq Khan who expired on 14.11.2005 thereafter she married with Petitioner No. 1. Copy of death certificate dated 10.01.2013 is attached as Annexure B showing the name of her first husband. The marriage certificate of the petitioners is attached as Annexure C showing the date of marriage as 06.01.2013. Annexure D-1 is the CNIC of the Petitioner No. 1 which was issued on 25.06.2002 and was valid up to 30.4.2009. Two old NICs were also issued to the same petitioner. NIC issued in 1982 was renewed on 25.05.2001 due to change of address and the same are also attached as Annexures D-2 and D-3. The last CNIC (Annexure D-4) of the Petitioner No. 1 was issued on 20.02.2013 which was valid up to 20.02.2020. A certificate of domicile of the Petitioner No. 1 is attached as Annexure E which was issued on 18.12.1998. The copies of passport issued to the Petitioner No. 1 on 01.08.1982, 31.07.1987 and lastly on 28.10.2006 which was valid up to 27.10.2011 are also annexed as Annexures F-1 to F-3. The NIC of the Petitioner No. 2 was issued in the year 1989 and the CNIC was also issued to her on 01.02.2013 which was valid up to 01.02.2020, copies of the same are attached as Annexures G-1 and G-2. All these documents have been attached in chronological order to demonstrate that in past they were never called upon to prove their national status as citizens of Pakistan and from time to time their CNICs were renewed and the Petitioner No. 1 has also submitted his credentials and service record including domicile issued in 1998 and in his domicile he is shown as citizen of Pakistan by birth. The record reflects that on 04.09.2020, the Law Officer of NADRA filed a statement that the Petitioner No. 1 may be directed to pursue his case before District Level Committee (DLC), South and the Petitioner No. 2 to visit Verification and Revocation (V&R) Branch, NADRA for clearance of her CNIC, however on 24.09.2020 an additional reply was also filed by NADRA in which a plea was taken that the petitioners failed to prove their national status according to the notification issued by Ministry of Interior dated 19.4.2017. It was further stated that the petitioners never visited/appeared before the DLC for clearance of their national status and did not submit any documentary evidence, therefore, their cases are still pending before the DLC. One statement is also available on record dated 24.09.2020 which was filed by Branch Manager, HBL, High Court Road Branch, Karachi in which it was stated that due to non-compliance of the biometric verification the account of the Petitioner No. 1 was blocked for all debit transactions and obviously this was done as a result of blocking of petitioners CNIC by NADRA.

6. Section 18 of National Database and Registration Authority Ordinance, 2020 depicts and characterizes the powers to cancel, impound or confiscate cards. For the ease of reference, Section 18 of the aforesaid Ordinance is reproduced as under:

1. Power to cancel, impound or confiscate cards.--(1) A card issued under this Ordinance shall be the property of the Federal Government and may, by an order in writing under the seal of the Authority or an officer authorised by it in this behalf, be required to be returned and shall also be liable to be cancelled, impounded or confiscated by a like order:

Provided that no order shall be made unless such person has been given notice in writing calling upon him to show cause why the order should not be made.

(2) An order under sub-section (1) canceling, impounding or confiscating a card may be made only if there is reason to believe that--

(a) the card has been obtained by a person who is not eligible to hold such card, by posing himself as eligible;

(b) more than one cards have been obtained by the same person on the same eligibility criteria;

(c) the particulars shown on the card have been obliterated or tampered with; or

(d) the card is forged.

(3) Any person in respect of whose card an order under sub-section (1) has been made may, within thirty days of the order, appeal to the Federal Government against the order and the decision of the Federal Government in appeal shall be final:

Provided that no order on such appeal shall be passed unless the appellant has been given an opportunity of being heard.”

1. The letters of the law made it clear that the CNIC may be cancelled, impounded or confiscated only if there is a reason to believe that the card has been obtained by a person who was not eligible; duplication of card obtained by a same person; the particulars shown on the card have been obliterated or tampered with; or the card was forged. In the aftermath of cancellation, impounding or confiscation, an appeal may be filed within 30 days to the Federal Government. According to the exactitudes of Section 18 of NADRA Ordinance, any drastic and punitive action can only be taken if there is a reason to believe. The solemnity and minutiae of this provision unequivocally demonstrates that the application of this section can only be exercised by the authority if they have some reasons to believe that the card was obtained in violation of conditions mentioned in clauses (a) to (d) of sub-section (2) of Section 18 of the NADRA Ordinance. This cannot be put into effect as a routine exercise every time if a person applies for the renewal of his CNIC on the basis of his previous credentials or antecedents showing requisite and proper documents already in his custody to show his national status which is quite sufficient for the satisfaction of the authority but instead of examining those documents that were issued earlier to the said person, NADRA started inquiry without any cogent and substantive reason. This is not the region or raison d’etre under the law that in each and every case Section 18 should be invoked or resort to by the authority for questioning the authenticity and genuineness of manual NIC or the earlier CNIC issued by the same department to the person who only applied for the renewal of his CNIC and nothing else. The purpose of establishing National Database and Registration Authority under the 2000 Ordinance is to provide for the registration of all persons and for the establishment and maintenance of multipurpose databases, data warehouses, networking, interfacing of databases and related facilities and services with the whole objective that a new, improved and modernized registration and database system is the emergent need of time for its multiple beneficial uses and applications in efficiently and effectively running the affairs of the State and the general public for achieving the goals of good governance, public service and minimizing scope of corruption and inefficiency.

8. Even though, the nitty-gritties of Section 18 explicate the power to cancel, impound or confiscate the card as an eventual punitive action but no powers are integrated or en suite to block the CNIC of any person unless it is finally determined or adjudicated that the card issued to any such person should be cancelled, impounded or confiscated. Before deciding the fate of show cause notices, there is no provision under the NADRA Ordinance to block CNIC. Any such action beyond the scope of law makes a person neither here nor there being as in this case. Due to blocking of CNICs the Petitioner No. 1 is unable to operate his bank account which is much painful and troublesome. Nothing has been said by NADRA that the petitioners are involved in any offense or their CNIC have been blocked under some Court’s order or some suspicious amount is said to have been parked in their accounts through unverified source or they are suspected of any money laundering case. Despite showing off all past available record to substantiate the bona fide of the petitioners, NADRA blocked their CNICs and started fishing and roving enquiry through a show cause but the genuineness or authenticity of documents presented by the petitioners have not been questioned with the allegation that the same are forged or manipulated hence not acceptable. At this point in time what is the status of the petitioners? Whether in this transitional or intermediary period they are supposed to have lost or deprived their citizenship of Pakistan and what would be the impending course of action in such case if the card is cancelled, impounded or confiscated? Whether any such person will be deported to somewhere else or he may be allowed to live in Pakistan with the right to apply for citizenship afresh? Nothing was answered by the counsel for the NADRA to this effect when we raised the query to him. In fact the deprivation of citizenship is provided under Section 16 of the Pakistan Citizenship Act, 1951. For the ease of reference, Section 16 is reproduced as under:

“16. Deprivation of citizenship.--(1) a citizen of Pakistan shall cease to be a citizen of Pakistan if he is deprived of that citizenship by an order under the next following subsections.

(2) Subject to the provisions of this section the Federal Government may by order deprive any such citizen of his citizenship if it is satisfied that he obtained his certificate of domicile or certificate of naturalization [under the Naturalization Act, 1926 (VII of 1926)] by means of fraud, false representation or the concealment of any material fact, or if his certificate of naturalization is revoked.

(3) Subject to the provisions of this section the Federal Government may by order deprive any person who is a citizen of Pakistan by naturalization of his citizenship of Pakistan if it is satisfied that that citizen--

(a) has shown himself by any act or speech to be disloyal or disaffected to the Constitution of Pakistan; or

(b) has, during a war in which Pakistan is or has been engaged, unlawfully traded or communicated with the enemy or engaged in or associated with any business that was to his knowledge carried on in such a manner as to assist the enemy in that war; or

(c) has within five years of being naturalized been sentenced in any country to imprisonment for a term of not less than twelve months.

(4) The Federal Government may on an application being made or on its own motion by order deprive any citizen of Pakistan of his citizenship if it is satisfied that he has been ordinarily resident in a country outside Pakistan for a continuous period of seven years beginning not earlier than the commencement of this Act and during that period has neither--

(i) been at any time in the service of any Government in Pakistan or of an International Organization of which\ Pakistan has, at any time during that period been a member; or

(ii) registered annually in the prescribed manner at a Pakistan Consulate or Mission or in a country where there is no Pakistan Consulate or Mission at the Prescribed Consulate or Mission or at a Pakistan Consulate or Mission in a country to the country of his residence his intention to retain Pakistan citizenship.

(5) The Federal Government shall not make an order depriving a person of citizenship under this section unless it is satisfied that it is in the public interest that the person should not continue to be a citizen of Pakistan.

(6) Before making an order under this section the Federal Government shall give the person against whom it is proposed to make the order notice in writing informing him of the grounds on which it is proposed to make the order and calling upon him to show cause why it should not be made.

(7) If it is proposed to make the order on any of the grounds specified in sub-Sections (2) and (3) of this section and the person against whom it is proposed to make the order applies in the prescribed manner for an inquiry, the Federal Government shall, and in any other case may, refer the case to a Committee of inquiry consisting of a Chairman, being a person possessing judicial experience, appointed by the Federal Government and of such other members appointed by the Federal Government as it thinks proper.”

1. According to the aforesaid section, the Federal Government may by order deprive any such citizen of his citizenship if it is satisfied that he obtained his certificate of domicile or certificate of naturalization under the Naturalization Act, 1926 by means of fraud, false representation or the concealment of any material fact. It is further provided under Subsection (5) that the Federal Government shall not make an order depriving a person of citizenship unless it is satisfied that it is in the public interest that the person should not continue to be a citizen of Pakistan, whereas Subsection (6) further provides that before making any such order the Federal Government shall issue a show cause notice to such person informing him of the grounds on which it is proposed to make the order. Whereas under Section 17 of the same Act the Federal Government grants a certificate of domicile to any person in respect of whom it is satisfied that he has ordinarily resided in Pakistan for a period of not less than one year immediately before making an application and has acquired a domicile therein. The issuance of domicile certificate under Section 17 of Pakistan Citizenship Act, 1951 read with Rule 23 of Pakistan Citizenship Rules, 1952 makes it evident that a particular person is a domicile of Pakistan. In the case of Mehmood ul Hassan Khan vs. Dow University of Health Sciences (PLD 2008 Karachi 49), the learned Division Bench of this Court while dilating upon the dictum laid down in the case of Joan Marg Carter vs. Albert William Carter (PLD 1961 SC 616); Mehr-un-Nisa Baloch vs. Appellate Committee (PLD 1978 Kar. 214); Muhammad Yar Khan vs. Deputy Commissioner-cum-Political Agent Loralai (1980 SCMR 456) and Ziaullah vs. District Magistrate Nawabshah (2000 CLC 406) held that expression “domicile” would reflect a person’s status as a citizen of a particular state or country, whereas expression “permanent residence” might be a pure question of fact as to his residence in a particular area.

2. According to Section 3 of the Passport Act, 1974, no citizen of Pakistan shall depart from Pakistan by any means whatever unless he is in possession of passport or visit a foreign country unless his passport is valid for such country. At the same time power to cancel, impound or confiscate passport is provided under Section 8 of the same Act which provides that the passport shall be the property of Federal Government and the same may be cancelled, impounded or confiscated by an order under the head of Secretary to Government of Pakistan or an authorized officer of the Federal Government, however, under Subsection (2) it is provided that before making an order the Federal Government shall give such person notice in writing calling upon him to show cause why the order should not be made, however, if the Federal Government has reason to believe that a person has been engaged in subversive or in activities which are prejudicial to the interest of Pakistan or to Pakistan’s relations with any foreign power, no show cause notice will be required to be issued in the above situation.

3. In the case in hand not only the Petitioner No. 1 produced the copy of domicile but at least two passports were issued from time to time but despite that NADRA casts doubt on his citizenship status without disclosing anything in the show cause notice as what are the reasons which led them to believe that the petitioners are not citizens of Pakistan or their earlier manual NICs were issued on some false declaration or misrepresentation. No specific allegation of any fraud shown nor any other cogent complaint has been referred to if any received by NADRA against the petitioners. Their case of renewal was delayed for a considerable period of time without any progress. Sometimes they were called upon to appear before the District Level Committee and sometimes they appeared before the Verification and Revocation (V&R) Branch, NADRA but the fact remains that the case is lingering on at NADRA level and the fate of show cause notices has not been decided which were issued on 03.05.2017. The learned counsel for the NADRA could not point out any substantial defect in the documents produced with the petition. The past NICs and CNICs were also issued by the same department under the law so no adverse presumption can be inferred that under the doctrine of indoor management the department at that relevant time failed to apply requisite law .and mind and without due diligence cards were issued to the petitioners and if so, what action has been taken against such delinquent officers at large scale for future deterrence.

4. Corresponding to definition provided in clause (e) of Section 2 of National Database and Registration Authority Ordinance, 2000, citizen means a person who is, or is deemed to be a citizen of Pakistan, under the Pakistan Citizenship Act, 1951 and in clause (k) National Identity Card means a card issued under sub-section (1) of Section 14 and, where the context so admits, includes an identity card issued under the National Registration Act, 1973. (old law). Pakistan Citizenship Act, 1951 was promulgated to make provisions for citizens of Pakistan, whereas National Database and Registration Authority Ordinance 2000 was premeditated to provide for the registration of persons and establishment and maintenance of multipurpose databases, data warehouses, networking, interfacing of databases and related facilities. Section 46 of the National Database and Registration Authority Ordinance, 2000 puts forward that this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force. What is extremely dominant and assertive to ruminate or mull over that Citizenship Act as well as the NADRA Ordinance both are special laws relating to the special subjects. The Citizenship Act pertains to the grant of citizenship of Pakistan, whereas the NADRA Ordinance, 2000 relates to the registration of persons and issuing of national identity cards according to their domain and mandate. Since both are the special laws, therefore, according to basic principle of interpretation, one special law cannot override the provisions of another special law when particularly

both are governing two different aspects. The citizenship of any person cannot be confiscated and for that a particular provision is already provided under the law to deal the matter of confiscation for deprivation of citizenship under Section 16 of the Citizenship Act, 1951.

1. In unison, the niceties of Section 9 of the NADRA Ordinance, 2000 cannot do away with which articulates the registration of citizens and its second proviso intelligibly enunciates that all citizens who stand validly registered under any law immediately before the commencement of NADRA Ordinance shall be deemed to have been registered in the said Ordinance and their registration shall, subject to Sections 17, 18 and 30 remain valid till expiry of two years from the commencement of the Ordinance or such time as may be notified by the Federal Government or till such time as such citizen is registered afresh whichever is earlier, whereas under Section 10 of the same Ordinance, the authority is required to issue or renew National Identity Cards on fulfilling the conditions as mentioned in that section but in the proviso attached to this section much emphasis has been made again that all cards issued under Section 5 of the National Registration Act, 1973 to such citizens as stood registered under Section 4 of the said Act immediately before the commencement of this Ordinance shall be deemed to have been issued under this Ordinance and shall, subject to Sections 17, 18 and 30 remained valid till such period as the underlying registration of the citizens to whom such cards are issued remains valid in terms of the first proviso to sub-section (1) of Section 9. It is further provided in the second proviso of the same section that before issuing or renewing a card under this section the authority may require a person to surrender a National Identity Card earlier issued to him under this Ordinance or the National Registration Act, 1973. The whys and wherefores of dilation and expounding of aforesaid Sections lead us to straightforward assessment that under NADRA law much sanctity has been given to the cards earlier issued to the citizens before the promulgation of this Ordinance and the cards issued under National Registration Act, 1973. Nothing was pleaded by NADRA before us that when previous CNIC was issued under old laws or even under 2000 Ordinance the due diligence was not made by the authority or the data already available in their record was not taken into consideration but a sweeping allegations were leveled in the show cause notice.

2. Even so, the powers and functions for issuing cards! are provided under Section 14 of the NADRA Ordinance by which the authority is required to take such measures, exercise such powers and perform such functions as it considers necessary, expedient, incidental or consequential for or to the issuance and renewal of the cards provided for in Sections 10, 11, 12 and 13 (National Identity Cards Section 10, Pakistan Origin Cards Section 11, Overseas Identity Cards Section 12, Alien Registration Cards Section 13). According to Rule 3 of the National Database and Registration Authority (National Identity Card) Rules, 2002 a citizen shall be a resident citizen if he is not a non-resident citizen, whereas according to Rule 4 a non-resident citizen means a citizen shall be a non-resident citizen if he (a) is an emigrant or intending emigrant; (b) is, or is intending to be, resident abroad; (c) holds nationality or citizenship of any other country or state pursuant to sub-section (3) of section 14 of the Pakistan Citizenship Act, 1951; or (d) holds an emigrant or resident visa, permanent or otherwise, or equivalent authorization, permit or status, as the case may be, of a foreign state or country.

3. When we raised a query to the learned counsel for NADRA in which provision of law, they can block CNIC before issuing show cause and ultimate decision, he simply referred to a Notification of Ministry of Interior, Government of Pakistan dated 19.4.2017 which was in fact issued in exercise of powers conferred under Section 47 of the National Database and Registration Authority Ordinance, 2000 whereby the Federal Government on the recommendations of the Parliamentary Committee was pleased to approve the mechanism for clearance of blocked CNICs. In this Notification in paragraph (1) some conditions are mentioned to clear the blocked CNICs if an applicant provides one or more of the documents. The list of documents required to be produced by a citizen to prove his citizenship and unblocking of his CNIC are as follows:

“Blocked CNIC will be cleared if applicant provides one or more of following documents:-

1. Land record registered prior to 1978 (verified by Revenue Dept.)

2. Local/Domicile Certificate issued prior to 1978 and verified by issuing authority.

3. Pedigree (Shajra-e-Nasab) issued & verified by Revenue Dept.

4. Government employment certificate (or of blood relative), employed before 1990.

5. Verified educational certificates (issued prior to 1978)

6. Passport issued to applicant prior to 1978.

7. Any other document issued by Government of Pakistan prior to 1978 and verified by issuing authority (including Arm License, Driving License or Manual NIC issued prior to 1978 duly verified by record).”

8. The learned counsel for NADRA also pointed out a letter dated 27.4.2017 issued by Director General Operations, NADRA to all regional heads offices, NADRA for handling mechanism of temporarily cleared/blocked CNICs. In this letter too, the types of cases have been highlighted as “routine cases” and “complex cases”. For routine cases it is mentioned that all unblocked (temporarily cleared) cases will be treated as routine cases and will he handled by NADRA, whereas in category 2 the complex cases are mentioned with the condition that all the cases which are blocked as confirmed alien/non-national on the basis of agency report will be dealt by District Level Committee. Let us survey the nucleus and realm of Section 47 of the National Database and Registration Authority Ordinance, 2000 which is reproduced as under:

“47. Removal of difficulties. If any difficulty arises in giving effect to any provision of this Ordinance, the Federal Government may make such order, not inconsistent with the provisions of this Ordinance, as may appear to it to be necessary for the purpose of removing the difficulties.”

1. We have scanned the law but unable to find out any provisions under which NADRA is authorized or vested with any powers to block CNIC of any person though a separate mechanism is provided under Section 18 where no such powers as an interim measure are available under the law. So far as Section 47 of the NADRA Ordinance 2000 is concerned, this by and large correlated to the removal of difficulties if arises in giving effect to any provision of the NADRA Ordinance which does not mean that any such notification may be issued for the removal of alleged difficulties in which the directions can be given beyond the spirit and scope of the parent law. It is well settled exposition of law that the rules and regulations if framed cannot travel beyond the scope of parent Act and such type of addition under the law cannot be achieved under the garb or semblance of removal of difficulties clause. All the more so, even this very notification issued by Ministry of Interior have not given any directions for blocking the CNIC but they have provided a mechanism to deal with the blocked CNIC and with the cutoff date for producing the documents without any logic or rationale that how this cutoff date was chosen from the year 1978. The blocking of CNIC is alien to NADRA Ordinance, 2000 as no specific provisions are provided.

18. No doubt under Section 18 of the NADRA Ordinance, 2000 show cause notice may be issued but for that also there must be some reason to believe that the person was not eligible but he obtained the CNIC or his card was forged. Even in the SOP dated 27.4.2017 forwarded by D.G. Operations NADRA to all RHOs (NADRA) the complex cases are those cases which are blocked as confirmed alien/non-national on the basis of agency report which cases are to be dealt with by District Level Committee. In the case in hand nothing was produced by learned counsel for the NADRA that any complaint was received against the petitioners that they were ineligible to obtain the CNIC or there was any agency report against them whereby their cases were treated to be complex cases and referred to the DLC. The purpose of providing procedure for cancellation and confiscation of cards by the legislature does not mean to exercise these powers callously or recklessly but the guiding principle under the law is that there must be some reason to believe and the phrase “reason to believe” should not be based on figment of imagination but substantial and definite information and not on vague allegations.

1. All the documents filed with the petition by the petitioners when confronted to the learned counsel for NADRA, he could not deny the authenticity and genuineness of the documents except relied on Section 18 of the NADRA Ordinance. Nothing addressed’ to challenge the authenticity or genuineness of the documents those have been filed by the petitioners nor argued that on verification any document was found forged or manipulated. It is also strange as to why the earlier CNICs issued to the petitioners are not taken into consideration when the same department or their predecessors had issued the same and if in the NADRA there was such type of mismanagement and the cards are issued due to connivance of the staff members then what action has been taken so far against such culprits which was also remained unaddressed by the NADRA. The domicile, earlier passports even the Nikahnama of the petitioners are being rejected solely for the reason that these documents were issued after 1978 but there was no rationale or commonsensical logic as to why 1978 cutoff date has been laid down in the Ministry of Interior letter and what is the fate of those persons who were not registered prior to 1978 whether they will be treated alien in this country despite having citizenship. The proper course was to verify these documents from the authorities who issued the same rather than putting the petitioners in the pressure and embarrassing situation to prove their identity and citizenship in Pakistan after such a long time.

2. In the case of Dr. Seema Irfan and others versus Federation of Pakistan and others (PLD 2019 Sindh 516). (judgment authored by one of us Muhammad Ali Mazhar, J), the show causes notices were found to be issued on specific grounds and definite information available to the FBR and the petitioners were also confronted to the allegations explicitly and not merely on the basis of stereotype or generalized printed format of show cause in a slipshod manner. Though the petition was dismissed but the Court held that in exercise of its extraordinary constitutional jurisdiction the Court 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. It was further held that the lack of jurisdiction means lack of power or authority to act in a particular manner or to give a particular kind of relief. It refers to a Court’s total lack of power or authority to entertain a case or to take cognizance. It may be failure to comply with conditions essential for exercise of jurisdiction or that the matter falls outside the territorial limits of a Court. The abuse of process is the intentional use of legal process for an improper purpose incompatible with the lawful function of the process by one with an ulterior motive in doing so, and with resulting damages. In its broadest sense, abuse of process may be defined as misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process. Abuse of process is a tort comprised of two elements: (1) an ulterior purpose and (2) a willful act in the use of process not proper in the regular conduct of the proceeding. Abuse of process is the malicious misuse or misapplication of process in order to accomplish an ulterior purpose. However, the critical aspect of this tort remains the improper use of the process after it has been issued. Ref: DeNardo v. Maassen, 200 P. 3d 305 (Supreme Court of Alaska, 2009), McCornell v. City of Jackson, 489 F. Supp. 2d 605 (United States District Court, Mississippi, 2006), Montemayor v. Ortiz, 208 SW 3d 627 (Court of Appeals of Texas at Corpus Christi-Edinburg, 2006), Reis v. Walker, 491 F. 3d 868 (United States Court of Appeals, 2007), Sipsas v. Vaz, 50 AD 3d 878 (Appellate Division of the Supreme Court of the State of New York, 2008). Whereas coram non judice is a Latin word meant for “not before a judge,” is a legal term typically used to indicate a legal proceeding that is outside the presence of a judge or with improper venue or without jurisdiction. Any indictment or sentence passed by a Court which has no authority to try an accused of that offence is clearly in violation of the law and would be coram non judice and a nullity. When a lawsuit is brought and determined in a Court which has no jurisdiction in the matter, then it is said to be coram non judice, and the judgment is void. Manufacturing Co. v. Holt, 51 W. Va. 352, 41 S.E. 351.

3. The learned counsel for the NADRA referred to the judgment rendered by the learned High Court of Balochistan in the case of Najeebullah vs. Director NADRA, Balochistan, Quetta (PLD 2016 Balochistan 1) in which the Court held that although a number of documents annexed with the petition prima facie established the fact that the petitioners were nationals of Pakistan, however, fate of the petition could not be decided on the basis of such documents, authenticity of which could only be determined and established before a civil Court and it required a full-fledged enquiry and scrutiny, that too, after providing full opportunity of hearing to both the parties. The Court further held that the NADRA alleged that documents presented by the petitioners could not be construed as conclusive proof for determining status of the petitioners because some of the documents were prepared through foul play in connivance with the officials in the Provincial Government for which proper investigation would be needed to set such controversy at rest which could not be resolved in the exercise of constitutional jurisdiction of the High Court. The aforesaid dictum laid down by the learned High Court of Balochistan is distinguishable as in the case in hand nothing was taken as a defence by NADRA that the documents produced by the petitioners are forged or manipulated. Whereas in two judgments rendered by this Court cited by the counsel for the petitioners i.e. Muhammad Umar vs. Federation of Pakistan (PLD 2017 Sindh 585) the learned Division Bench of this Court held that no clear provision in the Ordinance is available to block the CNIC, however, NADRA had the power to digitally impound the CNIC in terms of Section 18 of the Ordinance after fulfilling the requirement of a notice, whereas in the case of Syed Hasamuddin vs. Federation of Pakistan (2018 MLD 1748) also the learned Division Bench of this Court directed the NADRA to unblock the CNIC of the petitioner and his family members within two weeks, however, the NADRA was left open to conduct inquiry if they are in possession of any evidence or concrete material which could justify the allegation that the petitioner and his family members are Afghan nationals.

22. The whys and wherefores lead us to a finale that neither NADRA could demonstrate any cogent justification that the documents produced by the petitioners are forged or manipulated nor NADRA could satisfy or expound any rationale as to why these

documents are not acceptable to them nor it could be demonstrated by them that there were reasons to believe that the petitioners secured documents including previous NICs and CNICs/passports/domicile on the basis of some fraud or misrepresentation/impersonation, therefore, the blocking of CNIC was unlawful. We also ruminate that both the show cause notices are beyond the bounds and precincts of Section 18 of NADRA Ordinance, 2000 and so also abuse of process of law, consequently, the show cause notices are also quashed. Since the last CNIC of the Petitioner No. 1 expired on 20.2.2020 and the CNIC of Petitioner No. 2 expired on 1.2.2020 whereas this petition was filed on 11.3.2020 after expiry of both CNICs, therefore the petitioners may apply for renewal of their CNICs and NADRA is directed to renew their CNICs within fifteen days. The petition is disposed of accordingly along with pending application.

(Y.A.) Petition disposed of

PLJ 2021 Karachi 144 (DB)

Present:Muhammad Ali Mazhar and Arshad Hussain Khan, JJ.

Prof. Dr. MUHAMMAD ZAHID--Petitioner

versus

CHANCELLOR, FEDERAL URDU UNIVERSITY OF ARTS, SCIENCE AND TECHNOLOGY and others--Respondents

C.P. No. D-5205 of 2020, decided on 28.4.2021.

Federal Urdu University of Arts, Sciences and Technology, Islamabad Ordinance, 2002--

----Ss. 11 & 12(2)--Constitution of Pakistan, 1973, Art. 199--Application for post of Vice-Chancellor--Rejected--Recommendations of search committee--Issuance of show-cause notices--Clarification of mistake--Principle of appointing of search committee--Powers of search committee--Obligation of search committee--Direction to--Petitioner has alleged bias without any persuasive rationalization or reasoning against respondents except that he opposed nomination in search committee which is not a justifiable ground nor seems to be logical that in a process in which petitioner wants to participate and join for selection of Vice-Chancellor raising objections only for reasons that show cause notices were issued to respondents--Petitioner pointed out Form-E (feedback form) attached with counter affidavit of respondents and argued that due to inadvertence in column of research grants administered less than PKR million, petitioner wrongly mentioned “N/A” but he clarified this mistake through an email--Search committee was appointed for recommending most suitable candidate for appointment as Vice-Chancellor which could not outsource their responsibilities and onerous duty to some independent enumerators while a sacred duty was conferred to analyze and scrutinize credentials and antecedents of all candidates who applied to post of Vice-Chancellor--It was their obligation and errand appearing in law to scrutinize and assess curriculum vitae/resume of all candidates for short listing and marking/scoring with due diligence and correct application of mind then issue interview letters to shortlisted candidates--Petition disposed of.

[Pp. 149, 150,152 & 153] A, B, C & D

2016 PLC (CS) 1232, 2012 SCMR 6 and AIR 2015 SC 1875 ref.

Mr. Muhammad Safdar and Ms. Asmaa Javaid, Advocates along with Petitioner.

M/s. Anwar Mansoor Khan & Muhammad Ali Talpur, Advocates for Respondents No. 1 to 5, 7 & 8.

Barrister Hussain Bohra, Assistant Attorney General.

Dates of hearing: 16.12.2020 & 17.12.2020

Order

Muhammad Ali Mazhar, J.--This Constitution Petition has been brought to challenge the appointment of Respondents No. 7 and 8 as members of Search Committee vide notification dated 07.07.2020. The petitioner has prayed for the directions against the respondents to reconstitute the search committee in view of the guidelines set by Higher Education Commission (HEC) and also entreated a further declaration that rejection of his application submitted for the appointment of Vice-Chancellor is illegal. A restraining order has been sought against the respondents from processing the applications received for the position of Vice-Chancellor.

1. The learned counsel for the petitioner argued that the petitioner is Professor in BPS-21 in Federal Urdu University of Arts, Sciences and Technology (FUUAST) (Respondent No. 2). The University announced a vacancy for the post of Vice-Chancellor vide advertisement dated 16.08.2020 in the vernacular newspapers to which the petitioner also applied. It was further contended that under Section 12 (2) of the Federal Urdu University of Arts, Sciences and Technology, Islamabad Ordinance, 2002, it is the requirement that in the Search Committee two distinguished teachers who were not members of the Senate and one academic of eminence not employed by the University should be there. It was avowed that Respondents No. 7 and 8 were included in the Search Committee who are neither distinguished nor worthy of being members of the search committee due to their unruly and highly undesirable behavior in past and they were also issued show cause notices. He further argued that Senate Investigation Committee also recommended that due to lack of discipline and undesirable behaviour of Respondents No. 7 and 8, they must not be assigned any additional responsibilities. It was further contended that the search committee shortlisted a number of candidates who were less qualified and less competent than the petitioner who is a senior member of the same University for last 25 years, despite that his application was rejected without considering his credentials or antecedents due to bias of Respondents No. 7 and 8. It was further averred that the search committee ignored the guidelines of HEC and while advertising the post the important guidelines and minimum standards framed by HEC were ignored. The search committee in order to accommodate their favourites has changed the criteria and requisite qualification for the post of Vice-Chancellor and intentionally did not consider the three research grants of petitioner less than Rupees One Million and rejected him. It was further contended that the search committee for the purposes of shortlisting and scoring outsourced their task to independent enumerators which fact is clearly mentioned in the counter affidavit filed by the respondents which creates serious doubt about the credibility, competence and partiality of the search committee for the appointment of Vice-Chancellor on merit.

2. The learned counsel for the Respondents No. 1 to 5, 7 and 8 argued that there is no specific conditions laid down in Section 12 of the Ordinance for the appointment of Vice-Chancellor, hence the search committee is authorized to decide the requirements in the best interest of the University. The search committee can also ask the candidates to furnish further information in order to recommend the panel of best candidates to the Senate for appointment. It was further contended that the Respondents No. 7 and 8 were nominated in the search committee vide 40th Syndicate meeting convened on 14.02.2020. The petitioner neither challenged the nomination of the said members after their notification nor challenged their nomination before the search committee. The petitioner challenged the process only when he was not shortlisted due to his own failure to meet the requisite criteria. As per University Code, the Syndicate is authorized to nominate the names of two teachers as members of the search committee through the Senate. The previous show cause or inquiry if any against such members is not relevant. Moreover, when the Respondents No. 7 and 8 were nominated in the 40th Syndicate meeting, the petitioner was present but the minutes of that meeting do not transpire any objection of the petitioner with regard to the nomination of Respondents No. 7 and 8 as members of the search committee. The present search committee consists of eminent professionals from the society and also has two former Vice-Chancellors as its members which is functioning as per the rules and regulations and has also adopted the best practice to search and recommend a panel of worthy professionals for the post of Vice-Chancellor. The search committee issued a feedback form in which the candidates were asked to summarize their credentials and achievements which feedback form was also a part of progressive selection criteria. The search committee allocated 50 marks in different categories required to be mentioned in the feedback form and it was also decided by them that the candidates who will be able to secure 70% marks or above i.e. 35 out of 50 were to be shortlisted and called for interview. The petitioner failed to obtain 35 marks out of 50 on the basis of information that he himself provided, hence he was not fit to be called for interview.

3. Heard the arguments. Compliant with Section 11 of the Federal Urdu University of Arts, Sciences and Technology, Islamabad Ordinance, 2002, the Vice-Chancellor of the University should be an eminent academic or a distinguished administrator and as a Chief Executive Officer of the University must be responsible for all administrative and academic functions of the University for ensuring that the provisions of this Ordinance, Statute, Regulations and Rules are faithfully observed in order to promote the general efficiency and good order of the University. Whereas, Section 12 of the same Ordinance germane to the appointment and removal of Vice-Chancellor who is appointed by the Chancellor on the basis of recommendations made by the Senate. In keeping with Sub-section (2), a search committee is constituted by the Senate for the recommendations of persons suitable for appointment as Vice-Chancellor. For the ease of reference, Section 12 of the aforesaid Ordinance is reproduced as under:

“12. Appointment and removal of the Vice-Chancellor.--(1) The Vice-Chancellor shall be appointed by the Chancellor on the basis of recommendations made by the Senate.

(2) A Search Committee for the recommendation of persons suitable for appointment as Vice-Chancellor shall be constituted by the Senate on the date and in the manner prescribed by the Statutes and shall consist of two eminent members of society nominated by the Chancellor, of whom one shall be appointed the Convenor, two members of the Senate, two distinguished University Teachers who are not members of the Senate and one academic of eminence not employed by the University. The two distinguished University teachers shall be selected by the Senate through a process, to be prescribed by Statute that provides for the recommendation of suitable names by the University Teachers in general. The Search Committee shall remain in existence till such time that the appointment of the next Vice-Chancellor has been made by the Chancellor.

(3) The persons proposed by the Search Committee for appointment as Vice-Chancellor shall be considered by the Senate and of these a panel of three, in order of priority, shall be recommended by the Senate to the Chancellor:

Provided that the Chancellor may decline to appoint any of the three persons recommended and seek recommendation of a fresh panel. In the event of a fresh recommendation being sought by the Chancellor the Search Committee shall make a proposal to the Senate in the prescribed manner.

(4) The Vice-Chancellor shall be appointed for a renewable tenure of five years on terms and conditions prescribed by Statute. The tenure of an incumbent Vice-Chancellor shall be renewed by the Chancellor on receipt of a resolution of the Senate in support of such renewal:

Provided that the Chancellor may call upon the Senate to reconsider such resolution once.

(5) The Senate may, pursuant to a resolution in this behalf passed by three-fourths of its membership, recommend to the Chancellor the removal of the Vice-Chancellor:

Provided that where the Review Panel set up by the Chancellor in terms of Section 8 of the Ordinance has reported gross misconduct by the Vice-Chancellor, including misuse of position for personal advantage of any kind, the Senate may, pursuant to a resolution in this behalf passed by two-thirds of its membership, recommend to the Chancellor the removal of the Vice-Chancellor:

Provided further that prior to a resolution for the removal of the Vice-Chancellor being voted upon the Vice-Chancellor shall be given an opportunity of being heard. The Senate may recommend the removal of the Vice-Chancellor on the ground of misuse of position for personal advantage, inefficiency, moral turpitude or physical or mental incapacity.

(6) A resolution recommending the removal of the Vice-Chancellor shall be submitted to the Chancellor forthwith. The Chancellor may accept the recommendation and order removal of the Vice-Chancellor or return the recommendation to the Senate.

(7) At any time when the office of the Vice-Chancellor is vacant, or the Vice-Chancellor is absent or is unable to perform the functions of his office due to illness or some other cause, the Senate shall make such arrangements for the performance of the duties of the Vice-Chancellor as it may deem fit.”

5. The petitioner in essence or predominantly has challenged the nomination of Respondents No. 7 and 8 as members of the search committee scarcely on the ground that show cause notices were issued to them due to their alleged unruly or rowdy behavior but he has not placed anything on record to show that on the basis of alleged show cause notices any departmental action was taken against them except a copy of recommendations of Senate Investigation Committee dated 26.4.2018 that during pendency of the proceedings they may not be allowed any additional responsibility. Being a candidate for the post, the candidate cannot make choices for the appointment or nomination of members of search committee. Except the present petitioner, no other candidate came forward to challenge the inclusion of Respondent No. 7 and 8. According to the composition provided for search committee, it needs to be consist of two eminent members of the society nominated by the Chancellor of whom one shall be appointed as convenor, two members of the Senate, two distinguished University teachers who are not members of the Senate and one academic of eminence not employed by the University. The two distinguished University teachers are selected by the Senate through a process to be prescribed by the Statute for the recommendation of suitable names by the University teachers in general. The petitioner has alleged bias without any persuasive rationalization or reasoning against the Respondents No. 7 and 8 except that he opposed the nomination in the search committee which is not a justifiable ground nor seems to be logical that in a process in which the petitioner wants to participate and join for the selection of Vice-Chancellor raising objections only for reasons that show cause notices were issued to Respondents No. 7 and 8. The respondents with their reply also produced a copy of notification dated 07.07.2020 issued by the Registrar conveying the names of the search committee, convenor and six other members appointed in terms of Section 12 of the aforesaid Ordinance. The appointment of search committee was made in pursuance of the minutes of 42nd meeting of the Senate of Federal Urdu University of Arts, Sciences and Technology for appointment of Vice-Chancellor. The respondents have also submitted the profile of search committee members according to which the Respondent No. 7 is serving as Assistant Professor in the Department of Chemistry. He has more than 18 years of postgraduate teaching experience and contributed twenty research articles in national and international journals. He attended and presented research work at multiple national conferences and workshops. He also served as a member of the Senate of the University and holds a PhD degree, whereas the profile of Respondent No. 8 depicts that he has also served as an Assistant Professor in the Department of International Relations having more than twelve years of postgraduate teaching experience and contributed various articles in national and international research journals and also holds a PhD degree. Neither the petitioner challenged this profile nor placed anything on record nor argued that these two persons are not fit in the criteria prescribed for the appointment of members in the search committee, on the contrary the petitioner admits that he filled some wrong information in the feedback form for which the Respondents No. 7 and 8 could not be held responsible. In our outlook and viewpoint, the allegations of bias or mala fide remained unsubstantiated and there is nothing to believe or hold that the nomination of Respondents No. 7 and 8 as members of search committee is illegal or ultra vires the procedure prescribed under Section 12 of the Federal Urdu University of Arts, Sciences and Technology, Islamabad Ordinance, 2002, hence on this count we do not find any substance in the petition.

6. Now we would like to mull over and take stock of other characteristics of the case. During course of arguments on 16.12.2020, the counsel for the petitioner pointed out Form-E (feedback form) attached with the counter affidavit of the respondents and argued that due to inadvertence in the column of research grants administered less than PKR 1 million, the petitioner wrongly mentioned “N/A” but he clarified this mistake through an email. He further argued due to some oversight correct information could not be submitted in the column but as a matter of fact, at least three research grants administered less than PKR 1 million are at the credit of petitioner. He requested us to grant some time to submit the copy of email and ultimately on 17.12.2020, petitioner’s counsel submitted a statement alongwith copy of email sent by the petitioner to show that on 03.10.2020, he communicated to the convenor of search committee and clarified that he received three research grants from local agency and also apologized for the inconvenience. We have also gone through the feedback form in which column 3a relates to the number of research grants administered less than PKR 1 million and clause 3b of the feedback form is pertinent to the number of research grants administered more than PKR 1 million but in both columns the petitioner has mentioned “N/A”. The respondents have also submitted a form of eligibility and shortlisting/scoring according to which the petitioner had obtained 32 marks only and could not secure the marks for those columns which he himself failed to mention details except “N/A”. When confronted to the copy of email, the learned counsel for the respondents submitted a statement that email of the petitioner was received on 03.10.2020 when the feedback forms of the candidates had already been scrutinized by the search committee and the scores allotted thereon. It was further stated that the petitioner failed to submit the requisite information or correction thereon within the extended date of submissions i.e. 24.09.2020, therefore, the request made by him in the aforesaid email could not be accepted.

1. What we have deciphered and figure out from the provisions of the Ordinance vis-a-vis the appointment of Vice-Chancellor, the rationale or underlying principle of appointing search committee is to make sure the recommendations for the appointment of Vice-Chancellor on merits in a transparent and translucent manner so that a profile of most competent and suitable person is vetted, screened or sort through for the recommendations but in the reply to main petition filed by Respondents No. 1 to 5, 7 and 8, paragraph 10 is quite relevant which for the ease of reference is reproduced as under:

“10. That the contents of Paragraph No. 13 of the main Petition are denied as false and misleading. As stated above, the Petitioner has failed to secure 35 marks which were the minimum required criteria to get short listed for the interview. The Search Committee performed within its rules and regulations without any prejudice, fear and favour. Therefore, the petitioner’s claim of hand-picking or pre-selecting the candidates is false, fictitious, fabricated and baseless. It is most respectfully submitted that the names of the candidates were never placed or disclosed to the Members of the Search Committee for short listing and scoring was done by the independent enumerators. Only the Scoring Sheets with the file numbers were discussed by the Search Committee without having names of any of the candidates. In addition to this the Members of Search Committee being highly qualified and professionals are person of integrity thus such baseless allegations are not warranted in the instant case and the same are being made for the Petitioner only for their ill-motivated and malafide intentions of slowing and stopping the process of appointment of the Permanent Vice-Chancellor of the University. Therefore, the instant Petition is liable to be dismissed with heavy cost on the Petitioner.”

8. The Vice-Chancellor for Academic Affairs provides the executive leadership in assisting the Chancellor in the overall planning, organizing, and controlling of the academic program areas. He performs the duties of executive administrative work in planning, developing, organizing, directing and evaluating academic programs, policies, procedures and guidelines with overall leadership, direction and control in all academic areas. The role and purpose of search committee is quite meaningful and carrying great weight and importance. It is somewhat incomprehensible to glance through the declaration made in aforesaid paragraph that the names of the candidates were never placed or disclosed to the Members of the Search Committee for short-listing and scoring was done by an independent enumerators and only the scoring sheets with the file numbers were discussed by the search committee without having names of any of the candidates. By doing so we feel no hesitation in our mind to hold that search committee was found fail in its duties. The search committee was appointed for recommending the most suitable candidate for appointment as Vice-Chancellor which could not outsource their responsibilities and onerous duty to some independent enumerators while a sacred duty was conferred to analyze and scrutinize the credentials and antecedents of all candidates who applied to the post of Vice-Chancellor. We do not think that search committee was empowered to adopt a unique idea of outsourcing their task to some independent enumerators which idea is downrightly extraneous and alien to Section 12 of the Ordinance wherein the entire responsibility rests upon the search committee to complete the entire exercise and recommend the names of best suitable candidates for the final selection by the Chancellor. It was their obligation and errand appearing in the law to scrutinize and assess the curriculum vitae/ resume of all candidates for shortlisting and marking/scoring with due diligence and correct application of mind then issue interview letters to the shortlisted candidates.

9. In the case of Pakistan Medical Association (Centre) vs. Chancellor Dow University of Health Sciences (2016 PLC (C.S.) 1232) (the judgment authored by one of us Muhammad Ali Mazhar; J), the question of appointment of Vice-Chancellor of the University as well as the domain and responsibilities of the search committee were dilated upon in detail on the basis of dictum laid down by our own Courts and foreign Courts and the gist and crux what has been deduced and congregated are that in the case of Rana Aamer Raza Ashfaq versus Doctor Minhaj Ahmed Khan (2012 SCMR 6), the apex Court expatiated and expounded the role of University and Vice-Chancellor and reckoned that Universities are seats of learning and centres of excellence. To achieve, its objects, University functions besides the Chancellor and Vice-Chancellor through its various institutions. Vice-Chancellor is a University’s institutional head and enjoys a pivotal position. Vice-Chancellor is a bridge between executive and academic wings of University. Such multi-dimensional role of Vice-Chancellor requires that person who occupies this office should be imbued with values and character traits of integrity, of academic excellence and administrative ability. In the case of Kalyani Mathivanan v. K.V. Jeyaraj and others (AIR 2015 SC 1875), the Supreme Court of India referred to Regulation 1 for the office of VC (Statutes and Ordinances of Cambridge University, June 2002:655) and held that VC is of a stature and his/her presence commensurate to lead a distinguished academic institution. The stated mission of the University is to contribute to society through the pursuit of education, learning, and research at the highest international levels of excellence. The VC must be of exceptional caliber with academic credibility, clear strategic vision, and outstanding leadership qualities. He/she should have strong management skills and senior level experience gained in a complex institution and the ability to bring them to bear in a democratic, self-governing University. The Vice-Chancellor being the principal executive and academic officer of the University, should exercise general supervision and control over the affairs of the University and give effect to the decision of all its authorities. He shall be the ex-officio Chairman of the Court, Executive Council, Academic Council, Finance Committee and Selection Committees and shall, in the absence of the Chancellor preside at any convocation of the University for conferring degrees. It shall be the duty of the Vice- Chancellor to see that the provisions of the Act, Statutes and Ordinances and Regulations are fully observed and he should have the power necessary for the discharge of this duty. In an interesting Article, titled “Why Socrates should be in the Boardroom in Research Universities”, published in 2010 by Amanda H. Goodall, Leverhulme Fellow, Warwick Business School, the author points out two contrasting events that happened in 2003 and 2004. It is common knowledge that Cambridge University came into existence in 1209 and almost about 800 years later, a distinguished Anthropologist, by name Alison Richard, was appointed as the 344th President or Vice-Chancellor of Cambridge. She was an acclaimed academician. In contrast to what happened at Cambridge in 2003, Oxford University appointed in 2004, a person by name John Hood, who was not an academic but was only a businessman. He became the first head of Oxford University, ever since the year 1230, to be elected to the Vice-Chancellorship from outside the University’s current academic body. The paper authored by Amanda Goodall considered the question as to why Cambridge and Oxford chose such different individuals to lead their ancient and reputed institutions. The central theme of the paper was as to whether there was a relationship between University performance and leadership by an accomplished researcher. Eventually, after analyzing the statistics from about 100 Universities throughout the world, the author came to the conclusion, supported by evidence that Research Universities should be led by top scholars. The conclusions reached by the author could be summarized in the way that the best Universities in the world are led by more established scholars; that scholar-leaders are considered to be more credible leaders in Universities, commanding greater respect from their academic peers; that setting an organisation’s academic standards is a significant part of the function of the Vice-Chancellor and hence one should expect the standard bearer to first year that standard; that a leader, who is an established scholar, signals the institution’s priorities, internally to its faculties and externally to potential new academic recruits, students, alumni, donors and the media; that since scholarship cannot be viewed as a proxy for either management experience or leadership skills, an expert leader must also have expertise in areas other than scholarship.

1. In the wake of above discussion, this constitution petition is disposed of along with pending application in the following terms:

2. Outsourcing the task of shortlisting and marking/ scoring by Search Committee to the independent enumerators was in violation of basic structure of Section 12 of the Federal Urdu University of Arts, Sciences and Technology,, Islamabad Ordinance, 2002 therefore the exercise of shortlisting and marking/

scoring conducted by said independent enumerators on directions of search committee is set aside.

1. The Search Committee is directed to conduct selection process de novo by itself and scrutinize and appraise in a fair and transparent manner all curriculum vitae/ resume submitted by the candidates for the appointment to the post of Vice-Chancellor pursuant to advertisements published in the newspapers on 16.08.2020 for inviting applications.

2. After due diligence, assessment and proper appraisal of curriculum vitae/resume, supporting documents and feedback forms including the information if any submitted by the candidates for rectifying any bona fide mistake in the feedback form, the search committee shall award marks consistent with the yardsticks/benchmarks and shortlist the candidates for interview. After finalization of selection process within 30 days, Search Committee shall forward the recommendations compliant with Section 12 of the Federal Urdu University of Arts, Sciences and Technology, Islamabad Ordinance, 2002 for appointment of Vice-Chancellor of Federal Urdu University.

(Y.A.) Petition disposed of

PLJ 2021 Karachi 155 (DB)

Present:Muhammad Ali Mazhar and Amjad Ali Sahito, JJ.

SHUMAILA SALMAN SHAH and 4 others--Petitioners

versus

FEDERATION OF PAKISTAN through M/o. Federal Education and Professional Training and others--Respondents

C.P. Nos. D-2526 & D-2623 of 2021, decided on 23.4.2021.

Constitution of Pakistan, 1973--

----Art. 199--Holding of physical exams for A and AS levels and O Level--Judicial review of Government of Policy--Judicial activism--Compass and magnitude of judicial’ review of governmental policy is now well settled and defined in which neither High Court can act out or represent as appellate authority with aim of scrutinizing tightness, fittingness and aptness of a policy nor may act as advisor to executives on matters of policy which they are entitled to formulate--Dominance of judicial review of executive and legislative action must be kept within precincts of constitutional structure so that there may not be any incidence to give thought to misgivings concerning role of judiciary in out stepping its bounds by uncalled-for judicial activism. [P. 167] A & B

Constitution of Pakistan, 1973--

----Art. 199--Policy of physical examination--Policy making body--Relaxation for appearance in examinations--Constitution does not confer or vest in any such fundamental right in which petitioners may claim any special treatment that they should be assessed through a method of S.A.G. rather than physical examination--NCOC being a policy making body--during pandemic chalked out and laid down a policy for physical examination subject to fulfillment of SOPs and even in short order, High Court had already incorporated SOPs circulated by British Council for strict adherence and implementation--Counsel for CAIE, during course of arguments, also produced a letter dated 08.4.2021 issued by CAIE to all principals for according further relaxation that if students or parents are not comfortable to take exams in May/June 2021 series they can withdraw future exam series without any additional financial burden--If petitioners are not in a position to appear in physical examination according to present schedule they may avail relaxation which was across board--High Court directed respondents to ensure strict adherence and compliance of SOPs as reproduced in para (iii) and assurance given by CAIE examination in para (iv) & (v) of short order. [P. 168] C, D & E

Mr. Muhammad Jibran Nasir, Advocate for Petitioners (in C.P. No. D-2526 of 2021).

Mr. Abdul Ghaffar Ahmed, Advocate for Petitioner (in C.P. No. D-2623 of 2021) along with M/s. Mazhar Ali Shaikh and Samil Malik Khan, Advocates.

Mr. Jawad Sarwana, Advocate for Cambridge Assessment International Education/Respondent No. 2 (in C.P. No. D-2526/ 2021 & Respondent No. 3 in C.P. No. D-2623 of 2021).

Mr. Asim Mansoor Khan, Advocate for the Intervener (CMA No. 11730/2021 in C.P. No. D-2526 of 2021 a/w M/s. Zeeshan Bashir Khan, Farmanullah and Amir Haider, Advocates, Mr. Asim Iqbal, Advocate/Intervener.

Mr. Kashif Sarwar Paracha, Acting Additional Attorney General of Pakistan.

Mr. Hussain Bohra, Assistant Attorney General.

Mr. Jawad Dero, Addl. A.G. Sindh for State.

Dr. Ghulam Ali Mallah, CEO/Secretary, Inter Board Committee of Chairman (IBCC), Ministry of Federal Education & Professional Training, Government of Pakistan, Islamabad.

Dates of hearing: 22.4.2021 & 23.4.2021.

Order

Muhammad Ali Mazhar, J.--The aforesaid petitions were decided vide our short order dated 23.4.2021. While wrapping up the matter to finale, we advocated our conclusions and aspired to release the detailed judgment in aid of our short order. The minutiae of the case was incorporated in our earlier order in a transitory form, however, for fairer understanding, the gist of the case is yet again bring to light in its fact-based matrix. In essence, the above-mentioned petitions were targeted to implore a declaration that decision of National Command and Operation Centre (NCOC) for holding physical exams for A and AS Levels and O Level were in violation of Articles 4, 8, 9 and 25 of the Constitution of the Islamic Republic of Pakistan hence the said decision be declared illegal. Next prayer was made for directions against the Respondent No. 1 (Federation of Pakistan through Ministry of Federal Education & Professional Training) to take on the alternative provided for evaluating the students in O, A and AS level exams thru School Assessed Grades method failing which approximately 85,000 students will face irretrievable loss. Together with the main petition, an interlocutory application was also moved under Order 39 Rules 1 and 2 CPC to refrain the respondents from conducting physical examination and evaluate and weigh up the students’ proficiency in keeping with the formula of school assessed grades. Intrinsically, the petitioners avowed that during third wave of pandemic, there is no justification or raison d’etre to hold physical examinations in Pakistan.

For the ease of convenience, nucleus of our short order dated 23.4.2021 is reproduced as under:--

“i) Holding physical exams for A and AS levels and O level according to notified schedules does not infringe or intrude any fundamental rights of the petitioners. The petitioners cannot claim any vested right to evaluate or appraise their credentials and competence by dint of “school assessed grades” and not by means of physical examination.

ii) The decision of physical examination of O/A/AS levels was taken in the meeting of Respondent No. 1/National Command and Operation Centre on 18.4.2021. Under the dominion of Judicial review, the Court reviews the lawfulness of a decision or action made by a public body. In fact this is a process under which executive or legislative actions may be subject to review by the judiciary. The Court may invalidate laws, acts and governmental actions that are incompatible with a higher authority more so, an executive decision may be invalidated for being unlawful and also maintains check and balance. This can be sought on the grounds that a decision arises when a decision-maker misdirects itself in law, exercises a power wrongly, or improperly purports to exercise a power that it does not have, which is known as acting ultra vires; a decision may be challenged as unreasonable if it is so unreasonable that no reasonable authority could ever have come to it or a failure to observe statutory procedures. (Ref: PLD 2020 Sindh 42. Hajj Organizers Association of Pakistan vs. Federation of Pakistan). In our view the policy decision impugned in these constitution petitions is based on number of circumstances on facts and expert opinion, forethought and premeditation of all pros and cons and it does not seem to be arbitrary, discriminatory or violative of any constitutional, statutory or any other provisions of law hence we do not find any justification or rationale to interfere in this policy decision when all arrangements have already been made for physical examination and large number of students throughout the country are geared up to appear in the examination while few students only approached to the Court of law for staying the examination and hamper the entire process which is totally unwarranted and prejudicial to the interest of large number of those students who are ready to appear and making preparation religiously.

iii) On 22.4.2021, Ministry of Federal Education and Professional Training, Government of Pakistan communicated Country Director British Council Pakistan for enforcement of SOPs during physical examination of A, AS levels and O level according to the schedule. In the same letter it is visibly conversed to the British Council for observance and adherence to Covid SOPs that Desk to be placed 6 ft. apart; face masks to always be worn; hand wash facilities to be provided at all venues; mandatory temperature checking and venues to be sanitized completely before and after exams. The counsel for the Cambridge Assessment International Education has also produced a copy of SOPs with clear assurance and undertaking that during the physical examination the SOPs shall be strictly followed and implemented. He has also produced a copy of letter communicated by British Council to the Federal Minister Education and Professional Training, Government of Pakistan assuring to follow the SOPs and also attached the document. For the ease of convenience, the SOPs document is reproduced as under:

“Health and Safety SOPs O and A Level Exams.

SOPs for venues

· Venue sanitization before every exam session.

· Minimum 2 meters distance between candidates throughout their exam journey.

· Minimum 2 meters distance between candidates’ desks. Mandatory temperature check for all security guards. Mandatory masks for all venue and security staff.

· Hand sanitizers and disinfectant wipes will be available at all venues.

· Dedicated team of venue staff to implement the H&S SOPs at venues.

SOPs for Candidates

· Candidates and schools are informed about early arrival at venues and late departure to ensure the social distance and crowd control.

· Mandatory temperature check by using thermal gun before entry in exam hall.

· Candidates quick scanning and ID check.

· Candidates to directly enter in exams hall and wait on their designated desks until exams start. No waiting area for candidates.

· Mandatory masks for all candidates throughout their exam journey.

· Candidates exit in batches with 05 minutes gap to ensure the social distancing.

· Waiting area only for under 18 candidates those will opt safe collection option.

· Where possible, different entry and exit points for candidates to ensure the social distancing.

SOPs for Venues Staff

· Weekly consent and forms are signed by invigilators.

· Temperature check for all venue staff upon arrival at venue.

· Masks are provided by the British Council and it is mandatory for venue staff to wear the mask.

· Gloves are provided to handle the question papers and answer scripts.

· Face shields are provided and mandatory for the venue staff performing candidates scanning and ID check duties.

· Mandatory social distance at venues throughout the exam activity.

SOPs for Staff

· Wearing mask is mandatory for staff.

· Use of gloves while handling question papers and answer booklets.

· Regular use of hand sanitizer.

· To ensure social distancing while performing their duties at venues.

· Dedicated staff to manage the exam venues and back office work to eliminate their physical interaction.

· Only one staff will travel in vehicle along with driver (mask is mandatory for driver).”

iv) The counsel for the Cambridge Assessment International Education (CAIE) referred to certain assurance given in their comments in order to safeguard and protect the interest of all candidates, the relevant paragraphs are reproduced as under-

“B26. The Respondent No. 3 (“CAIE”) also has put in place measures to ensure that most students taking exams can get a result, even if they miss some exam components due to Covid-19.

B-27. Respondent No. 3 (“CAIE”) recognizes that the Covid pandemic has increased the likelihood that some candidates may miss some or all their exams due to Covid illness or a requirement to self-isolate, and has introduced measures to ensure that as many of these students can still receive a result. For example, (1) Respondent No. 3 has relaxed its normal rules so that if a student misses all but one of the component exams for a qualification, Respondent No. 3 can still assess a grade on the basis of the one component exam, as shown in the two (2) documents titled “Covid-19 Exemption Components 9 December 2020” and “Covid-19 Exemptions for March and June 2021 Factsheet” which are attached and marked as Annexures “CAIE/9” and “CAE/10”, respectively.

B-28. The Respondent No. 3 (“CAIE”) has put in place measures to ensure that most students taking exams can get a result, even if they miss some exam components due to Covid-19.

B-29. Respondent No. 3 recognises that the Covid pandemic has increased the likelihood that some candidates may miss some or all their exams due to Covid illness or a requirement to self-isolate, and has introduced measures to ensure that as many of these students can still receive a result.

For example, Respondent No. 3 has relaxed its normal rules so that if a student issues all but one of the component exams for a qualification, Respondent No. 3 can still assess a grade on the basis of the one component exam. If a student is not able to take any component for covid-related reason and if they inform Respondent No. 3 (“CAIE”) within seven days of the exams, the Answering Respondent will refund their full exam fee and they will be able to sit in exam in CAIEs future series, for example, the October/November 2021 series. This is shown in the two (2) documents titled “Covid-19 Exemption Components 9 December 2020” and “Covid-19 Exemptions for March and June 2021 Factsheet” which are attached and marked as Annexures “CAIE/9” and “CAE/10”, respectively.

B-30. Unfortunately, there may be some candidates who miss all of the component exams for a qualification and it will not be possible to provide them with a result; the latter will however work with their school to help them sit in a subsequent exam series. Even in normal years, this happens to a small number of students who are unwell during their exams or prevented by some other means from taking exams, such as natural disaster. The Respondent No. 3 recognises that this will be disappointing for these students and will support their schools and them to prepare for the next available exams; however, health, safety and wellbeing of students and staff is the highest priority.

B-31. Respondent No. 3 is also providing advice to schools to help them support the mental health, safety and wellbeing of all students during these very difficult times, as shown in documents titled “How to Manage Stress and Learn Effectively at Home”, and “Transcript Mental Health and Wellbeing during a Time of Uncertainty” which are made available as resources by Respondent No. 3 online and are attached and marked as Annexures “CAIE/11” AND “CAIE/12”, respectively.

B-32. It is incorrect to suggest that students in Pakistan who are able to take exams will be at a clear disadvantage to candidates in countries where exams have had to be cancelled and alternative school assessed grades used. Respondent No. 3 has always and will continue to take clear steps to ensure that the grades awarded by either route are comparable, as set out in Annexure “CAIE/7”.

B-33. The Respondent No. 3 will and has ensured that students taking exams are not systematically disadvantaged (or advantaged) in their results, compared to students receiving results by other assessment methods. This does not, however, detract from Respondent No. 3’s clear position, which is accepted by education ministries and exam regulators, that assessment of candidates by exam is the fairest method, where those exams are safe.

B-34. The Respondent No. 3 (“CAIE”) charges the same fees to schools whether they are in a country taking exams or a country where school assessed grades are being used. There is no monetary benefit to the Respondent No. 3, and the Answering Respondent strongly refutes that monetary concerns are guiding its policy. The Respondent No. 3 is acting foremost to protect the health, safety and wellbeing of students and school staff during the pandemic, and second most to use the fairest forms of assessment to enable students to progress with their education.”

v) The counsel for the CAIE during course of arguments also produced a letter dated 08.4.2021 issued by Cambridge Assessment International Education to all Principals across Pakistan in which a further relaxation has been given that if a student or parent is not comfortable to take exam in May/June 2021 series they can withdraw their entries any time until the end of the series and sit in any future exam series without any additional financial burden. If the petitioners are not in a position to appear in physical examination according to the present schedule they may avail the relaxation which is across the board.

vi) Nevertheless, we have upheld the NCOC decision of holding physical examination in Pakistan in line with notified schedule and also rejected the prayer for awarding school assessed grades in lieu of physical examination but in unison, we also direct the respondents to ensure the strict adherence and compliance of SOPs reproduced in paragraph (iii) and the fair assurances given by CAIE which are mentioned in paragraph (iv) and (v) of this order”.

1. Mr. Muhammad Jibran Nasir, learned counsel for the petitioners in C.P. No. D-2526 of 2021 argued that the Federal Government and Provincial Governments are imposing ban and harder restrictions on social, educational and other cultural gatherings across Pakistan due to third wave of U.K. variant Covid-19 resulting in higher mortality rate and also suspended classes for all students from grades 1 to 12 and postponed other local board exams but on the other hand they are putting the petitioners and other like students at risk to appear in physical examination, which action is tantamount to violation of Articles 4, 8, 9 and 25 of the Constitution of Islamic Republic of Pakistan. He further argued that the Respondents No. 1 and 3 postponed the on-campus academic term(s) across the country in all educational institutions as well as annual SSC and HSSC examinations were moved to third week of May but they decided that A and AS level exams shall begin on 26.4.2021 and O level exam will commence on 10.05.2021 as per schedules. Such type of decision was beyond the reasonable comprehension as to why the similar risk was not calculated for at least 85,000 students registered with Respondent No. 2. He further argued that Respondent No. 2 conveyed an option to the Respondent No. 1 either to arrange the physical exams or the qualification of the students may be evaluated and appraised on the method of School Assessed Grades. He further argued that in many countries i.e. U.K., Saudi Arabia, Bangladesh, UAE, Oman and Kuwait they opted for evaluating the students through School Assessed Grades rather than physical examination. He further raised a question on the competency to ensure measures for safety of students, invigilators and staff during examination with strict implementation of SOPs. It was further averred that the combined interests of all such students shall be secured in the option of accepting the formula of School Assessed Grades which was devised and presented as an alternative to the physical exams by the Respondent No. 2 and exercise of such option will not cause any disadvantage to the students. Mr. Abdul Ghaffar Ahmed, learned counsel for the petitioner in C.P. No. D-2623 of 2021 adopted the arguments of Mr. Muhammad Jibran Nasir.

2. Mr. Kashif Sarwar Paracha, learned Acting Additional Attorney argued that in the Covid-19 pandemic, the Federal Government has established a platform in consultation with all stakeholders i.e. National Command and Operation Centre (NCOC) which is a policy decision making authority for the Inter-Provincial Education Ministers Committee. Every decision is based on consensus and implemented in letter and spirit. During the pandemic all decisions of school closure and opening were discussed in Inter-Provincial Education Ministers Committee Conference based on the data collected by the NCOC experts and Provincial Governments. It was farther averred that the British Council informed that for the current academic year there is no possibility for the School Assessed Grades and in case of no exams the only option would be left for the students either to appear in November 2021 exams or lose their academic year. The Respondents No. 1 and 3 decided for the physical examinations on the firm assurance of British Council and Cambridge authorities that they will comply with all notified SOPs in the examinations and the Federal Government will also carry out proper monitoring to see the compliance of SOPs in O and A level exams. It was further stated that the Federal Government has also conveyed to the Provincial Governments to ensure the strict compliance of SOPs during the examinations. He further argued that the petitioners have no right and authority to question the policy decision which is neither arbitrary nor discretionary but applicable to all students. The petitioners cannot force for any particular way of exams or to avoid the physical examinations. At least 15000 students are privately enrolled and if the petitioners are allowed the option of School Assessed Grades, then it will be discriminatory to the privately enrolled students who have no option for such type of evaluation except to appear in physical examinations.

3. Mr. Jawad Dero, Addl. A.G. Sindh argued that the decision of physical examinations by NCOC was taken with the consultation of all stakeholders and the representatives of Provincial Governments. There is no vested right of petitioners to ask for the school assessed grades. The policy decision of the Government cannot be challenged in the writ jurisdiction. So far as the implementation of the Covid-19 SOPs is concerned, the learned Addl. A.G. Sindh assured us that the SOPs will be implemented in letter and spirit.

4. Mr. Jawad Sarwana, learned counsel for Cambridge Assessment International Education (CAIE) argued that the Cambridge Assessment International Education (CAIE) is a UK entity existing under the laws of UK and it has neither any office nor carries on business within the territorial jurisdiction of this Court. The examination arrangement of CAIE’s O, AS and A level examinations is between two private contracting parties. It was further argued that the alternative method of School Assessed Grades is not desirable except in the exceptional circumstances and cannot be used where the country’s government and its public health authorities determine that the school exams can be held safely. It is too late to switch from physical exams to contingency option of school-assessed grades as no such effort was made by the Government of Pakistan. It was further averred that in the global Covid-19 pandemic the CAIE’s first priority is to support governments and public health authorities in protecting the health, safety and wellbeing of citizens. He also pointed out the SOP document attached with the reply for ensuring due compliance. In order to ensure the safety, the learned counsel also pointed out some documents attached with the reply i.e. emails on SOPs for schools and candidates, power Point presentation on SOPs, important messages for parents and British Council letter to the Federal Minister for Education and Professional Training regarding O and A level exams. It was further contended that CAIE believes that where exams can take place safely it is the fairest form of assessment to show students’ learning. He further argued that it is the prerogative of the governments in countries affected by Covid-19 to take wide range of possible action annulling the exams, changing exams content, delaying exams date, deferring exams timetable by up to six or more or having system of school based assessment where exams are not possible at all. He further refuted the contention that the students of Pakistan will be disadvantaged to the candidates in countries where exams are cancelled and alternative assessed grades are adopted. The learned counsel assured that CAIE will continue to take clear steps to ensure that grades awarded by either route are comparable and they will also ensure that students taking exams are not systematically disadvantaged (or advantaged) in their result as compared to the students receiving results by other assessment methods.

5. Mr. Asim Mansoor Khan, learned counsel for the intervener (CMA No. 11730/2021 in C.P. No. D-2526 of 2021) supported the decision of physical examinations taken by the Federation and the NCOC. According to him, intervener’s daughter is appearing in GCE AS and A Levels examination with the Cambridge Assessment International Education in April/May 2021 alike thousands of other students and shall be gravely affected and if CE exams are delayed and or conducted on the basis of School Assessed Grades which is based on an extremely low threshold which puts hard working students at the mercy of the school management which is, in most cases, is easily influenced. In reality, allowing the upcoming examinations to be conducted through the SAG system shall allow parents/guardians of students belonging to influential and strong families to manipulate grades/results through unfair means. This will also use as a tool for the students who made no efforts towards the preparation of the upcoming CAIE examinations session scheduled in April/May 2021. It was further averred that thousands of students have worked hard tirelessly for upcoming CAIE exams and if the same are delayed and/or conducted on the basis of School Assessed Grades, all their hard-work shall go to waste which will resultantly crush their morale and motivation.

7. Heard the arguments. The compass and magnitude of judicial review of governmental policy is now well settled and defined in which neither we can act out or represent as appellate authority with the aim of scrutinizing the rightness, fittingness and aptness of a policy nor may act as advisor to the executives on matters of policy which they are entitled to formulate. The extensiveness of judicial review of a policy is to test out whether it violates the fundamental rights of the citizens or is at variance to the provisions of the Constitution, or opposed to any statutory provision or demonstrably arbitrary or discriminately. The Court may invalidate laws, acts and governmental actions that are incompatible with a higher authority more so, an executive decision may be invalidated for being unlawful and also maintains check and balance. This can be sought on the grounds that a decision arises when a decision-maker misdirects itself in law, exercises a power wrongly, or improperly purports to exercise a power that it does not have, which is known as acting ultra vires; a decision may be challenged as unreasonable if it is so unreasonable that no reasonable authority could ever have come to it or a failure to observe statutory procedures. The dominance of judicial review of the executive and legislative action must be kept within the precincts of constitutional structure so that there may not be any incidence to give thought to misgivings concerning the role of judiciary in out stepping its bounds by uncalled-for judicial activism.

1. Indubitably, education being an indispensable and primary fundamental right is the course of action of accelerating learning, or the attainment of knowledge, competence, values, moral beliefs and habits and this right flows directly from right to life which is also concomitant to the fundamental rights enshrined in our Constitution . The benefit of education cannot be restricted to one or the other genera or classes. The effect and end result of holding right to education is implicit in the right to life which the State cannot deprive. Education is somewhat worthy contrivance which transforms educated people as a valuable source of knowledge for the society.

2. Article 25A has been inserted in the Constitution of Islamic Republic of Pakistan by means of 18th amendment which identifies the education as one of the fundamental rights and it is State responsibility and commitment to provide free and compulsory education to all children of age of 5 to 16 years in such manner as may be determined by the Law. In unison Article 37 embodied under the principle of policy explicates in principal that State shall promote with special care the education and economic interests of the backward classes or areas; remove illiteracy and provide free and compulsory secondary education within minimum possible period and make technical and professional education generally available and higher education equally accessible to all on the basis of merit. Whereas, under Article 38, it is the responsibility of State to provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment. It is shimmering beyond any shadow of doubt that right of education is indispensable fundamental right enshrined under the Constitution but it does not lead to or give rise to any particular right of examination method at the sweet will of students. The Constitution does not confer or vest in any such fundamental right in which the petitioners may claim any special treatment that they should be assessed through a method of School Assessed Grade rather than physical examination. The NCOC being a policy making body during pandemic chalked out and laid down a policy for physical examination subject to fulfillment of SOPs and even in our short order, we have already incorporated the SOPs circulated by the British Council for the strict adherence and implementation. Moreover, certain assurances were given by the CAIE which were also properly jot down in the short order. In order to safeguard and guarantee the best interest of the students with different options and the treatment in different scenarios, the learned counsel for the CAIE, during course of arguments, also produced a letter dated 08.4.2021 issued by CAIE to all principals for according further relaxation that if students or parents are not comfortable to take exams in May/June 2021 series they can withdraw and sit in any future exam series without any additional financial burden and we further observed in our short order that if the petitioners are not in a position to appear in physical examination according to the present schedule they may avail the relaxation which was across the board. In the end we also upheld the NCOC decision in our short order and rejected the prayer for awarding School Assessed Grades in lieu of physical examination. At the same time we directed the respondents to ensure the strict adherence and compliance of SOPs as reproduced in para (iii) and the assurance given by the CAIE examination in para (iv) & (v) of short order. The policy decision of holding physical examination rather than awarding school assessed grades does not infringe or contravene the fundamental rights of the petitioners as enshrined under Articles 4, 8, 9 and 25 of the Constitution of Islamic Republic of Pakistan. While contributing the reasons of our short order, we came to know through some public announcement that NCOC has revisited their policy decision and the Federal Education Minister has announced that Cambridge exams are postponed till October/November for all grades with exception of those in A-2 that decision seems to be in line with the option given by CAIE which freedom of choice was also assimilated in para (v) of our short order.

(Y.A.) Order accordingly

PLJ 2021 Karachi 169 (DB)

Present: Nadeem Akhtar and Adnan-ul-Karim Memon, JJ.

Syed AHMED MAAZ and 3 others--Petitioners

versus

FEDERATION OF PAKISTAN through Secretary Ministry of Health, Islamabad and 2 others--Respondents

Constitutional Petition No. D-6021 of 2020, heard on 27.10.2020.

Pakistan Medical Commission Act, 2020 (XXXIII of 2020)--

----Ss. 8(1), 13(1)(c), 16(1)(f) & 18--Constitution of Pakistan, 1973, Art. 199--Announcement for conducting of MDCAT Test on two different dates--Extraordinary and dangerous situation of Covid-19--Maintainability--Challenge to--Words "on a date" and "a single admissions test" contained therein do not mean that same must be read conjunctively--Words "a single admissions test" clearly denote a single attempt by every applicant; and words "on a date" undoubtedly mean date approved by Council--Extraordinary and dangerous situation prevailing due to Covid-19 pandemic which, prima facie, compelled Council and PMC to announce separate dates for conducting subject tests in order to segregate applicants into two groups viz. ones who are not infected with Covid-19 virus and ones who have tested positive for this potentially lethal virus or will have tested positive up till 29.11.2020--This reason appears to be not only genuine, but also in best interest of all concerned--Impugned announcement has not infringed any fundamental right of any of applicants, including present petitioners, and same is not contrary to any of provisions of PMC Act and/or any other law.

[Pp. 174 & 175] C, E & G

Constitution of Pakistan, 1973--

----Art. 199--Extraordinary measures--Extraordinary measures are permissible is extraordinary circumstances, such extraordinary measure are not contrary to any law--Needless to say extraordinary measures are permissible in extraordinary circumstances, provided such extraordinary measures are not contrary to any law.

[P. 175] F

Pakistan Medical Commission Act, 2020 (XXXIII of 2020)--

----S. 8(2)(f)--Power of council--Framing of regulations--Council has power to frame regulations for "conduct" of admissions in medical and dental colleges "and examinations to be conducted by PMC"--Approval accorded by Council for conducting subject tests on two dates cannot be deemed to be illegal or ultra vires PMC Act, especially when every applicant will be allowed only a single attempt. [P. 174] D

Pakistan Medical Commission Act, 2020 (XXXIII of 2020)--

----S. 8(2)(t), 18--Powers of authority to conducting of tests--Framing of regulations--Council shall have power, inter alia, to frame regulations for "conduct" of admissions in medical and dental colleges "and examinations to be conducted by PMC"--By virtue of Section 8(2)(t) of PMC Act, Council shall have power, inter alia, to do all such matters as are ancillary including issuance of policies or framing of regulations, convenient for or which foster or promote advancement of these matters and objectives of PMC Act.

[P. 173] B

Pakistan Medical Commission Act, 2020 (XXXIII of 2020)--

----S. 18--Power to conduct test-- PMC Act empowers the Authority established under the PMC Act to conduct the subject tests on a date approved by the Council constituted under the PMC Act and as per the standards approved by the Board constituted under the PMC Act. [P. 172] A

Mr. Muhammad Jibran Nasir for Petitioners.

Mr. Muhammad Nishat Warsi, D.A.G for Respondents Nos. 1 and 2.

Mr. Zeeshan Abdullah for Respondent No. 3.

Date of hearing: 27.11.2020.

Judgment

Nadeem Akhtar, J.--Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, ('the Constitution') the petitioners have prayed that the two National Medical and Dental College Admission Tests (NMDCAT) ('the subject tests') announced by Respondent No. 3/Pakistan Medical Commission ('PMC') to be held on 29.11.2020 and 13.12.2020 be declared ultra vires. The Pakistan Medical Commission Act, 2020, ('the PMC Act'), particularly Section 18 thereof; direction be issued to PMC to conduct the subject tests in accordance with the PMC Act after ensuring necessary and effectual safety measures and standard operating procedures (‘SOPs’) to curb the spread of Covid-19; PMC be restrained from conducting the subject tests till fulfillment of all obligations as mandated by the PMC Act ensuring necessary SOPs; and, the respondents, including PMC, be restrained from taking any action that may prejudice the petitioners.

2. Relevant facts pertaining to this matter, as averred in the petition, are that the petitioners have duly registered themselves for the subject tests as they are seeking admission in the under-graduate medical degree programs in public and private universities and colleges across Pakistan. After constituting and notifying the National Medical and Dental Academic Board ('the Board') and the National Medical Authority ('the Authority') in compliance of the common order passed by this Court on 11.11.2020 in Constitutional Petition Nos. D-4953/2020, D-5036/2020, D-5158/2020 and D-5237/2020, PMC announced that the subject tests will be held on 29.11.2020. Thereafter, PMC issued an 'Official Announcement' on 25.11.2020 whereby it was announced that the subject tests will be held on two separate dates i.e. on 29.11.2020 for the applicants who were not currently Covid-19 positive and on 13.12.2020 for those who have tested positive for Covid-19 or will have tested positive up till 29.11.2020. The above Official Announcement issued/made by PMC has been impugned in the present petition.

1. The main thrust of the arguments advanced by learned counsel for the petitioners was that the impugned announcement made by PMC is ultra vires the PMC Act inasmuch as under Section 18 thereof only a single NMDCAT can be held, therefore, the subject tests cannot be held on two different dates. According to him, the impugned announcement is liable to be declared ultra vires the PMC Act on this ground alone. In addition to the above, it was contended by him that the impugned announcement is also not sustainable on the ground that if the subject tests are held on two different dates, the question papers/MCQs will be different for both batches of applicants, and as such the criteria for judging them and awarding marks to them will not be the same; the competition amongst all the applicants across Pakistan should be equal and fair, therefore, the criteria for judging them should be the same; there should be no distinction or discrimination in such judgment; and, the subject tests for the applicants appearing on 29.11.2020 will be more difficult and tougher than those appearing on 13.12.2020 as the former will have to prepare themselves for the entire syllabus, whereas instead of covering the entire syllabus, the latter will have to prepare for the subject test from the remaining syllabus. It was also contended by the learned counsel that PMC has not announced or taken any precautionary or safety measures for observing the SOPs in the wake of the second wave of the Covid-19 pandemic. It was urged by him that PMC should be directed to hold the subject tests of all the applicant-students across Pakistan on the same day, and to ensure strict adherence of all the prescribed SOPs.

2. At the outset, learned counsel for PMC submitted that the petition is not maintainable as the petitioners are not aggrieved persons as contemplated in Article 199 of the Constitution; there is no violation by PMC, as alleged or otherwise, of any fundamental right of the petitioners or other applicants; and, the impugned announcement is not contrary to any of the provisions of the PMC Act and/or any other law. In order to justify the impugned announcement/decision, it was contended by him that the same was taken by PMC on 25.11.2020 in the light of the guidelines issued by the National Disaster Management Authority (NDMA) in view of the sharp and rapid rise in the cases of Covid-19; because of the peculiar nature of the Covid-19 virus, it is not possible or advisable at all to allow applicants carrying the virus to appear in the subject tests on the same day along with other applicants; in order to ensure the safety and well being of all the applicants and the persons/staff interacting with them at the examination centres, which is of paramount importance in the prevailing circumstances, PMC decided to conduct the subject tests as per schedule i.e. on 29.11.2020; but for those applicants who have tested positive for the virus, it was decided that their tests will be held on a separate date i.e. on 13.12.2020; all the prescribed SOPs shall be followed by PMC on both the given dates; and, it is imperative that the subject tests are held as soon as possible on the dates announced by PMC as in view of the rising cases of Covid-19 on daily basis, any delay therein may result either in further exposure and infection to the applicants and the staff or cancellation of the subject tests. It was further contended by him that the question of discrimination does not arise at all as the question papers for the subject tests on both the dates shall be prepared from the prescribed syllabus, and every applicant is not only aware of the syllabus, but is also required to prepare himself/herself according to the same.

5. It was further submitted by learned counsel for PMC that Section 18 of the PMC Act empowers the Authority established under the PMC Act to conduct the subject tests on a date approved by the Council constituted under the PMC Act and as per the standards approved by the Board constituted under the PMC Act. It was urged by him that the impugned decision/announcement was made by PMC strictly in accordance with Section 18 ibid after prior approval of both the dates of the subject tests by the Council, which shall be held as per the standards approved by the Board. It was pointed out by him that before the enactment of the PMC Act, all four Provinces of the country used to take separate entrance tests of the applicants, but now under Section 18 ibid PMC has been empowered to take a centralized admissions test for all the applicants across Pakistan. It was urged by him that the words "a single admissions test" have been used in Section 18 ibid in this context. It was further urged by him that in any event the requirement of a single admission test on annual basis, as envisaged in Section 18 ibid, shall be met as every applicant will be allowed only a single admission test.

1. With regard to the official Respondents 1 and 2, it was stated by learned DAG that this Court may pass any order as it may deem fit and proper in the facts and circumstances of the case. However, in view of the rival contentions of the petitioners and PMC, it was suggested by him that the subject tests may be conducted across Pakistan on the same day via video link in order to restrict the applicants positive for Covid-19 virus to their respective places of isolation. This suggestion was opposed by learned counsel for PMC by submitting that such extensive arrangement for about 125,000 applicants is not possible on short notice and also as every applicant may not have the facility of an internet/WiFi connection.

7. We have heard learned counsel for the parties and have examined the material available on record with their able assistance, particularly the relevant provisions of the PMC Act. Before embarking upon the merits of the case, we deem it expedient to briefly discuss such powers and functions of the Council, the Board and the Authority constituted under the PMC Act, enumerated in Sections 8, 13 and 16, respectively, of the PMC Act, that are relevant for the purposes of the case at hand. Section 8(1) of the PMC Act, inter alia, provides that the Council shall have all powers, not expressly vested in any other authority or officer by any other law, where such powers not expressly mentioned in the PMC Act are necessary for the performance of its functions. Under Section 8(2)(f) of the PMC Act, the Council shall have the power, inter alia, to frame regulations for the "conduct" of admissions in medical and dental colleges "and the examinations to be conducted by PMC". By virtue of Section 8(2)(t) of the PMC Act, the Council shall have the power, inter alia, to do all such matters as are ancillary including issuance of policies or framing of regulations, convenient for or which foster or promote the advancement of these matters and the objectives of the PMC Act. Section 13(1)(c) of the PMC Act provides that the Board shall have the functions and power to formulate the examination structure and standards for the NMDCAT for approval of the Council. Under Section 16(1)(f) of the PMC Act, the Authority shall have the functions and power to conduct all examinations provided under the PMC Act, and under Section 16(1)(h) of the PMC Act, to implement all decisions of the Council and the Board. Section 16(2) of the PMC Act empowers the Authority to exercise all powers as shall enable it to effectively perform its functions.

1. Sub-section (1) of Section 18 of the PMC Act empowers the Authority established under the PMC Act to conduct a single admissions test on annual basis on a date approved by the Council constituted under the PMC Act and as per the standards approved by the Board constituted under the PMC Act. It is not the case of the petitioners that the subject tests have been announced by PMC on two different dates without the approval of the Council or the same are being held contrary to the standards approved by the Board. Perusal of the impugned announcement/decision shows that it was specifically mentioned therein that the same was made with the approval of the Council. Thus, the condition precedent or conducting the subject tests, as envisaged in Section 18(1) ibid, was admittedly fulfilled by PMC. It is also mentioned in the impugned announcement by PMC that the subject test on 13.12.2020 shall be conducted with the same structure and standard as the test being conducted on 29.11.2020. This statement clearly rules out the possibility of any discrimination, as averred by the petitioners.

9. Regarding the argument advanced on behalf of the petitioners that Section 18 ibid allows only a single NMDCAT and as such the impugned announcement of conducting the subject tests on two different dates is ultra vires the PMC Act, we are of the view that a plain reading of Section 18(1) ibid would show that the words "on a date" and "a single admissions test" contained therein do not mean that the same must be read conjunctively. The words "a single admissions test" clearly denote a single attempt by every applicant; and the words "on a date" undoubtedly mean the date approved by the Council. In this context, the submission made on behalf of PMC that a single admissions test means a centralized test across Pakistan also has force. It is not disputed that all the applicants appearing in the subject tests on both the given dates will be allowed only one/single attempt, and both the said dates have been duly approved by the Council. As noted above, the Council has the power under Section 8(2)(f) of the PMC Act to frame regulations for the "conduct" of admissions in medical and dental colleges "and the examinations to be conducted by PMC". Therefore, the approval accorded by the Council for conducting the subject tests on two dates cannot be deemed to be illegal or ultra vires the PMC Act, especially when every applicant will be allowed only a single attempt.

10. We must not lose sight of the extraordinary and dangerous situation prevailing due to the Covid-19 pandemic which, prima facie, compelled the Council and PMC to announce separate dates for conducting the subject tests in order to segregate the applicants into two groups viz. the ones who are not infected with the Covid-19 virus and the ones who have tested positive for this potentially lethal virus or will have tested positive up till 29.11.2020. This reason appears to be not only genuine, but also in the best interest of all concerned. Additionally, it also prevents applicants from missing the subject test, which is mandatory for seeking admission in medical or dental college/university, on account of being unwell, and gives them a chance to appear for the NMDCAT thereby ensuring they are not academically disadvantaged or their studies are not delayed by one whole academic year. Had there been any other reason or ground, conducting the subject tests on two different dates would have become questionable. Needless to say extraordinary measures are permissible in extraordinary circumstances, provided such extraordinary measures are not contrary to any law. Due to this reason, we are of the view that the impugned announcement/decision of PMC and our observations and findings in respect thereof should not be treated or cited as a precedent for NMDCAT to be held in future.

11. In view of the above discussion, we conclude that the impugned announcement/decision has not infringed any fundamental right of any of the applicants, including the present petitioners, and the same is not contrary to any of the provisions of the PMC Act and/or any other law.

1. Foregoing are the reasons of the short order announced by us on 27.11.2020 whereby this petition was dismissed in the following terms and with the following direction to PMC:

"Learned counsel for the petitioners and Respondent No. 3 as well as learned DAG have concluded their submissions. For the reasons to follow, the instant petition and listed application are dismissed, however, with the direction to Respondent No. 3/PMC to ensure that all SOPs in relation to the Covid-19 pandemic prescribed by the National Disaster Management Authority (NDMA), Ministry of Health Government of Pakistan, and the Ministry of Health of the Province concerned, are strictly followed in letter and spirit by the students, invigilators and all persons/staff present at the examination centres during the subject MDCAT examination. There will be no order as to costs."

PMC is further directed to ensure that results of the subject tests held on 29.11.2020 and 13.12.2020 must be announced together and a single merit list is issued in respect of the tests held on both the above dates.

(J.K.) Petition dismissed

PLJ 2021 Karachi 176 (DB)

Present: Muhammad Ali Mazhar and Arshad Hussain Khan, JJ.

ABDULLAH ANJUM ALIM--Petitioner

versus

FEDERATION OF PAKISTAN through Ministry of Education Islamabad and 5 others--Respondents

Const. P. No. D-6106 of 2020, decided on 8.12.2020.

Constitution of Pakistan, 1973--

----Art. 199--Expiry of last date for filing of MDCAT form--Petitioner was failed to apply to PMC for enrolment to appear in MDCAT--Extension of date for filing of forms--Constitutional jurisdiction--Last extended date for filing MDCAT forms was expired on 06.11.2020 and this petition was presented on 30.11.2020 after delay of much reasonable time and after date when MDCAT was over--Once cutoff date for filing applications has expired no such directions can be issued--In constitutional jurisdiction no such bad precedent can be made to extend time for filing application form after expiry of cutoff date--Petitioner failed to point out any plausible justification for not applying within time when online application facility was also available--Petition dismissed.

[P. 178] A & B

Ms. Sarwat Israr, Advocate for Petitioner.

Mr. Zeeshan Abdullah, Advocate for Respondent No. 3 along with Mr. Samil Malik Khan, Advocate.

Mr. Kamaluddin, Advocate for Respondent No. 4. along with Ali Akbar Siyal, Consultant for Respondent No. 4.

Mr. Muneer Ahmed, Advocate for NTS.

Mr. Jawad Dero, Addl. A.G.

Date of hearing: 8.12.2020.

Order

Muhammad Ali Mazhar, J.--The petitioner has approached this court for the declaration that there is no provision either in Pakistan Medical Commission Act, 2020 or the Admission Regulations, 2020 to refuse the petitioner an opportunity to appear in MDCAT which is to be held on 13.12.2020. It is further prayed that there is no restriction to give second chance to the petitioner that he failed to avail the first chance. It is further prayed that directions may be issued to the Respondent No. 3 to allow the petitioner to appear in MDCAT on 13.12.2020.

1. On notice Mr. Zeeshan Abdullah advocate has filed vakalatnama for Respondent No. 3 along with comments in which it is clearly mentioned that the petitioner failed to apply to the PMC for his enrollment to appear in the MDCAT. He further argued that out of 126025 registered students 121310 appeared in the MDCAT throughout the country. It is further stated that MDCAT on 13.12.2020 is to be conducted only for 138 students who tested positive with Covid-19. The petitioner never got himself enrolled for MDCAT. He further argued that there is no provision available in the PMC Act, 2020 to provide chance to appear after cutoff date of submission of online form for MDCAT to PMC.

2. Mr. Kamaluddin advocate has filed vakalatnama for Respondent No. 4 which was admitting university before promulgation of PMC Act, 2020 but after promulgation of PMC Act, 2020 there was no role of admitting university as under Section 18 of the Act, 2020 the responsibility to conduct MDCAT is of Pakistan Medical Commission throughout the country as single admission test. Mr. Kamaluddin advocate referred to the comments of Respondent No. 4 and argued that MDCAT was scheduled to be conducted through NTS by admitting university in old law on 18.10.2020 which was not conducted due to restraining order of the court, thereafter, the petitioner was to be enrolled with PMC in new Law but he failed to get his registration.

3. Heard the arguments. To start with, we would like to point out that in para-6 of the petition, it is stated by the petitioner that due to some unavoidable circumstances, the petitioner could not appear for his NTS on 18.10.2020. In fact no test was conducted on 18.10.2020 in view of the order passed by this court on 16.10.2020 in C.P. No. D-4953 and C.P. No. D-5036 of 2020 on the notion that after promulgation of PMC Act, 2020, the MDCAT was to be organized and conducted under Section 18 of the of the PMC Act, 2020 by Pakistan Medical Commission and not by admitting university of province under old law therefore, the contention raised in para-6 is misconceived that due to some unavoidable circumstances, the petitioner could not appear. The proper mechanism was provided by the PMC for the registration of students/candidates for appearing in MDCAT with online registration facility and advertisements were also published in the newspapers. As stated by the learned counsel for the PMC that more than 126025 students got their online enrolments and 121310 appeared in the MDCAT on 29.11.2020, however, due to Covid-19 positive tests, PMC only separated 138 students so that their test may be conducted on 13.12.2020. No justification or any plausible reason has been shown by

the petitioner in his petition, however, learned counsel for the petitioner as a fall back argument took the plea that petitioner's relative died in Covid-19, therefore, he could not apply through online within the actual or extended date which is no justification. It is clearly reflecting from the order dated 28.10.2020 passed in C.Ps. Nos. D-4953, 5036, 5158 and 5237 of 2020 by this court that the last date for filing application forms to appear in the MDCAT was 02.11.2020 but on the request of learned counsel for the petitioners in that case the last date for filing application forms was extended up to 06.11.2020 in order to facilitate the students. The last extended date for filing MDCAT forms was expired on 06.11.2020 and this petition was presented on 30.11.2020 after delay of much reasonable time and after the date when the MDCAT was over on 29.11.2020. Once the cutoff date for filing applications has expired no such directions can be issued. In the constitutional jurisdiction no such bad precedent can be made to extend the time for filing application form after expiry of cutoff date otherwise in all educational institutions and the competitive examinations everybody will come and claim such leniency and relaxation which will severely affect the discipline. The petitioner failed to point out any plausible justification for not applying within time when online application facility was also available. This petition is dismissed along with pending applications.

(Y.A.) Petition dismissed

PLJ 2021 Karachi 178

Present: Salahuddin Panhwar, J.

NIAZ AHMED and another--Appellants

versus

ZAIN-UL-ABEDIN and 4 others--Respondents

Second Appeal No. 17 of 2017, decided on 29.9.2020.

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

----S. 100--Second appeal, scope of--Scope of 2nd appeal is narrow and it could be exercised only if findings of fact arrived by Courts below are based upon misreading, non-reading or misinterpretation of evidence on record. [P. 180] A

2019 SCMR 524 ref.

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

----O.XXXVII--Suit for recovery--Concurrent findings--Violation of contract for providing of service for performance of Hajj--Non-grant of Hajj quota--Obtaining of amount--Liabilities of company--Challenge to--Counsel for appellants has not been able to point out any material prejudice because of such departure by appellate Court nor refers to failure of appellate court in examining available material for its conclusion--Appellants only applied for quota which was never granted to them yet appellants not only took amount from people, including respondents in name of 'getting such persons performed Hajj'--Six innocent persons, not having knowledge of legal ramifications with regard to non-payment or none performing of contract, cannot be punished when they intended to perform sacred holy work but it was not fulfilled by appellants--Defendant No. 2 admitted that said company is working under supervision of three board of directors including me and my mother and Defendant No. 3" they, being directors of company, can't escape their liabilities towards company--I do not find any illegality or exceptional circumstances which could justify setting aside of concurrent findings of two courts below, particularly when conclusion is based on proper appraisal of available material as well admissions of appellants--Appeal dismissed.

[Pp. 181, 183 & 184] B, C, D, E & F

Ref. 2008 SCMR 589; 2007 SCMR 1318 ref.

Mr. Muhammad Khalid, Advocate for Appellants.

c, Advocate for Respondents.

Date of hearing: 29.9.2020.

Order

Appellants have filed this appeal against judgment and decree dated 21.12.2016 in Civil Appeal No. 23/2015 passed by 6th Additional District and Sessions Judge Karachi Central and judgment and decree dated 10.03.2015 and 17.03.2015 respectively in Civil Suit No. 456/2010 passed by 2nd Senior Civil Judge Karachi Central.

1. Brief facts of the case are that respondents (plaintiffs) filed suit for recovery of Rs. 2850,000/- for breach of contract and damages against appellants (defendants) contending that Appellant No. 1 is Chief Executive of Appellant No. 2 company running business with name as M/s. Abdullah Carvan (Pvt) Ltd, Respondent No. 1 and 2 in order to perform Hajj, entered into contract whereby Respondent No. 1 paid an amount of Rs. 100,000/- on 28.06.2007, on 06.09.2007 Rs. 360,000/-, on 29.09.2007 further amount of Rs. 50,000/-, totaling to Rs. 510,000/- for himself, his mother namely Mst. Amna Khatoon and his wife Mst. Nasim Akhtar for performing Hajj, to Appellant No. 1 who had issued acknowledgement receipt; that Respondent No. 2 also came in contact with appellants for performing of Hajj and paid Rs. 340,000/- for himself, his wife Mst. Zeenatul Firdous to Appellant No. 1 who issued acknowledgement. As per agreement it was 40 days hajj package and appellants had to make arrangements in the month of November 2007; that on 12.10.2007 when respondents went to office of appellants it was found locked, they again visited their office on 12.10.2007 but position was same, thereafter they came to know that Appellant No. 1 has fled to Dubai; that appellants in association with each other had committed fraud with respondents as well violated the contract for providing service for performance of hajj; that one of the victims namely Muhammad Hanif Khan lodged FIR No. 418/2007 at PS North Nazimabad Karachi against them under Section 420, 468, 471, 406, 34 PPC on 23.10.2007, police arrested Appellant No. 1 and produced before the concerned court but later on all the accused obtained bail from that court; that due to fraudulent act and behavior of appellants, respondents suffered monetary losses, metal disturbance and pain and appellants No. 1 and 2 are jointly liable to pay damages as prayed for.

2. Heard learned counsel for respective parties. At the outset learned counsel for appellants while relying upon 2013 CLD 1280, 1982 CLC 2387, 1980 SCMR 440, 2009 SCMR 589 and 2004 SCMR 1591 contends that appellate court has failed to determine point for determination which is mandatory under Order XLI Rule 31, CPC; besides judgment of the trial court is against the law as amount received by company hence decree against directors as passed -by trial court is incompetent. Learned counsel for appellant also contended that suit cannot be decreed against directors and appellate court has failed to examine the point for determination.

4. Prima facie, through instant Second appeal the appellants are seeking setting aside of concurrent findings of two courts below. Scope of the 2nd appeal is narrow and it could be exercised only if findings of fact arrived by Courts below are based upon misreading, non-reading or misinterpretation of the evidence on record. Guidance is taken from the case of the Akhtar Aziz vs. Shabnam Begum 2019 SCMR 524 wherein scope of second appeal stood defined as:

"14. ... Although in second appeal, ordinarily the High Court is slow to interfere in the concurrent findings of fact recorded by the lower fora. This is not an absolute rule. The Courts cannot shut their eyes where the lower for a have clearly misread the evidence and came to hasty and illegal conclusions. We have repeatedly observed that if findings of fact arrived by Courts below are found to be based upon misreading, non-reading or misinterpretation of the evidence on record, the High Court can in second appeal reappraise the evidence and disturb the findings which are based on an incorrect interpretation of the relevant law. ..."

5. Keeping in view the above limited scope of the second appeal, I would first attend the plea, raised with reference to non-framing of the 'point of determination' by trial Court. I would take no exception to legal position that framing of point for determination is mandatory in nature, however, the purpose thereof is to have a reasonable and legal response from the appellate Court with regard to available material for stamping or reversing the judgment of trial court. If the appellate Court, otherwise, appears to have properly examined the available material and has given its own reasoning for stamping or reversing the impugned judgment, it would not be within spirit of safe administration of justice to remand the matter merely for reason of compliance of a procedural requirement which, otherwise, floats onto surface. In other words, for pressing such point, the asserter would also required to show, prima facie, failure of the appellate Court in not examining the available material for its conclusion as well that some prejudice has occasioned because of such departure. In the instant matter, the learned counsel for the appellants has not been able to point out any material prejudice because of such departure by appellate Court nor refers to failure of appellate court in examining the available material for its conclusion. I would take guidance from the judgment, relied upon by learned counsel for appellant as 2009 SCMR 589. The relevant portion thereof are as follows:

"8. ….In the instant case, a bare prusal of the, judgment of the first appellate Court clearly reflects that it has not given due attention to the available evidence on record...

1. …. In the case in hand the appellate Court has given cursory judgment mainly depending on the decision of the trial Court although sufficient material in the shape of evidence was available before it. The judgment of the first appellate Court is itself a big reason for remand of the case."

Therefore, I do not find much force in such plea of the learned counsel for the appellants.

1. Reverting to merits of the case, the claim of the respondents/plaintiffs had been that appellants/defendants had entered into a contract whereby they had assured to get them performed Hajj against the money, so obtained by the appellants but they failed to arrange Hajj visas. To such claim, a referral to para-3 of the written statement, being decisive, needs to be made which reads as:

"That the contents of para 3 are denied being wrong and maneuvered by the plaintiff. It is denied that amount mentioned in para No. 3 are paid to the Defendant No. 2. The amount was received by the Defendant No. 1 which was subsequently paid to M/s. Al Zahid Tours and Travels (Pvt) Limited for depositing the same with Hajj department. It is denied that Chief Executive of Defendant No. 1 had executed any receipt personally."

From above portion of the pleadings of the appellants/defendants, it is evident that they never denied the claim of the respondents/defendants rather had admitted the claim to such extent with further claim to have paid such amount to M/s. Al Zahid Tours and Travels (Pvt) Limited. Here, I would prefer in referring the case of Muhammad Iqbal vs. Mehboob Alam (2015 SCMR 21) wherein it is held as:

"It is a settled principle of law that a fact admitted needs no proof, especially when such admission has been made in the written statement (see PLD 1975 SC 242), and it is also settled that no litigant can be allowed to build and prove his case beyond the scope of his pleadings. Therefore, only plea that remained to be determined; as set out by the appellant in his defence (written statement) was if the time was the essence of the contract or not. But neither from the contents of the agreement nor from the intent and conduct of the parties and/or from any evidence led by the appellant it has been established to be so. In relation to contracts of immovable property the rule is that time ordinarily is not the essence, however, this by of means is an absolute rule and it is always open to the party, who claims exception thereto, to establish otherwise form the contents/ text, letter and spirit of the agreement and/or from the intent and conduct of the parties, as well as the attending circumstances. The appellant/defendant has failed to do so in the instant case."

Further, nothing was produced on record that such deposit was permissible per contract between parties or was with consent of respondents/plaintiffs. In absence thereof, such plea can't help the appellants/defendants in escaping their liabilities to honour the contract as well compensation for breaching the same within meaning of Contract Act. In the case of West Pakistan Tanks Terminal (Pvt.) Ltd. V. Collector (Appraisement) (2007 SCMR 1318) it is observed as:

"10. (sic) The law is well-settled that one cannot be allowed to take advantage of his wrong act or fraud played by him and in fact applying the law applicable to the lawfully taking away of consignments from the bonded warehouse, if applied in such cases, would amount to placing a premium on the fraud played by an importer involved in the act of smuggling."

At this juncture it would be conducive to refer examination in chief of Appellant No. 1 at page 183 which is that:

"I am Defendant No. 2 and was working as chief executive of Defendant No. 1. I am dealing with the business of garments since last 30 years in Hydri market. In the year 2006 I got registered a private limited company with the name and style of Defendant No. 1 with SECP. The said company is working under the supervision of three board of directors including me and my mother Jamila Begum and Defendant No. 3………….. The defendant's company started to deal with the business of Hajj and Umrah tour operations. I applied to the Ministry of Religious Affairs in order to get the permit for operating hajj quota with the approval of Dr. Farooq Sattar, however my request for quota was declined by ministry. Mr. Faizullah Khatak was deputy director Hajj posted at Karachi, who was also residing in new Haji camp. He assured me to assign me the hajj quota and in case of failure he given me choice that in case of failure of assigning quota he shall accommodate me from the quota of his son already allotted to his son."

Prima facie, the appellants only applied for quota which was never granted to them yet the appellants not only took amount from the people, including respondents/plaintiffs in name of 'getting such persons performed Hajj'. There can be no denial to the fact that 'performing Hajj is normally is the greatest desire of a Muslim who, for his life, prays and gathers money for such purpose therefore, when a person, with complete satisfaction of performing Hajj, is denied by the contractor (Travel agency), the mental shock and agony is inevitable.

7. With regard to case law as referred above, I have examined the same and facts of the case in Tariq Saeed Saigol vs. District Excise and Taxation Officer (1982 CLC 2387) are different from this case; in that case dispute with regard to education cess. In the case of Sultan-ul-Arfeen vs. D.O. (Revenue), CDGK (2013 CLD 1280) dispute was between the directors hence it was contended that individually directors are not liable to pay. Here situation is entirely different as six

innocent persons, not having knowledge of legal ramifications with regard to non-payment or none performing of the contract, cannot be punished when they intended to perform sacred holy work but it was not fulfilled by the appellants.

8. I also do not find any substance in the plea of the learned counsel for the appellant that a decree can't be recorded. In the instant case the Defendant No. 2 admitted that "The said company is working under the supervision of three board of directors including me and my mother Jamila Begum and Defendant No. 3" therefore, they, being the directors of the company, can't escape their liabilities towards the company.

9. In view of what has been discussed above, I do not find any illegality or exceptional circumstances which could justify setting aside of the concurrent findings of the two courts below, particularly when the conclusion is based on proper appraisal of the available material as well admissions of the appellants/defendants. Accordingly, instant appeal merits no consideration, same is dismissed.

(Y.A.) Appeal dismissed

PLJ 2021 Karachi 184

Present: Salahuddin Panhwar, J.

MIDHAT HAMID and 2 others--Applicants

versus

ShaikhAHMED HUSSAIN and 2 others--Respondents

Civil Revision Appln. No. 25 of 2015, decided on 25.9.2020.

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

----S. 12(2)--Ex-parte decree--Challenge to--Dismissal of application--Right of clearing--Notices were issued to respondents; they were served; they engaged counsel and in 2018 advocate appeared for intervener, whereas remaining respondents were also served through substituted service including publication but failed to cause their appearance, there appears no reasonable justification for keeping matter pending when applicants, prima facie, have a right of hearing but their application, moved under Section 12(2) CPC, was dismissed in limine though their title (registered document) has never been adjudicated as cancelled. [P. 189] D

Safe Administration of Justice--

----Safe Administration of Justice--Safe Administration of Justice always demands that no right, title or a registered document would lose its vitality without proper and fair right of hearing. [P. 187] A

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

----S. 12(2)--Remedy of Section 12(2) CPC is not limited to judgment-debtor or party of suit. [P. 187] B

1984 SCMR 586 ref.

Valuable rights--

----When, prima facie, valuable rights are involved it is always better to allow parties to lead their claim (s) rather to bring a full stop to such valuable rights without their being any due process of law.

[P. 189] C

Ref. 2003 SCMR 83.

Mr. Haq Nawaz Talpur, Advocate for Applicant.

Date of hearing: 25.9.2020.

Order

Through instant revision application, the applicants have challenged the order dated 18.02.2015, passed by the learned IIIrd Senior Civil Judge, Karachi (South), passed in Suit No. 879 of 2013 {Old Suit No. 1196 of 1998}, whereas the application under Section 12{2}, CPC, filed by the applicants was dismissed.

1. Precisely, relevant facts giving rise to this revision application are that the Respondent No. 1/plaintiff filed a suit against defendants Dr. Nazir Ahmed Said and 2 others for specific performance of contract claiming himself to be the bona fide purchaser in respect of the suit property having paid a sum of Rs. 15,92,000/- (Rupees fifteen lac ninety two thousand) out of total sale consideration of Rs. 25,00,000/- (Rupees twenty five lac) by virtue of sale agreement dated 21.09.1991. The defendants though handed over the possession of the suit property to the Respondent No. 1/plaintiff, but failed to transfer the same in his name inspite of the fact that the Respondent No. 1/plaintiff always ready and willing to pay the balance sale consideration of Rs. 9,08,000/- (Rupees nine lac eight thousand) and finally the defendants extended threats for his forcible dispossession from the suit property, hence the Respondent No. 1/plaintiff filed suit seeking following relief(s):

"(a) For specific performance of sale agreement, directing the defendants to execute the sale/transfer deed in favour of the plaintiff in respect of the suit property bearing Plot No. 95, Block 'A', City Survey No. 64, Sindhi Muslim Cooperative Housing Society, Karachi, admeasuring 600 Sq. Yards, with construction thereon. In case of his failure, the Nazir of this Court may be directed to execute the Sale Deed on behalf of defendants in favour of plaintiff.

(b) Permanent injunction, restraining defendants and/or any other person claiming through or under them from transferring/selling or alienating the said property in favour of any other person and/or disturbing plaintiff's possession and/or ejecting him from the said property in any manner whatsoever, otherwise than in due course of law.

(c) Costs of the suit.

(d) Any other relief, which is deemed proper in the circumstances of the case.

1. The defendants though served by way of substitute service, but failed to appear and contest the suit, hence service against them was held good and the matter was ordered to proceed ex-parte by an order dated 26.05.2006. The Respondent No. 1/plaintiff filed affidavit-in-ex-parte proof and by a judgment dated 31.07.2006 the suit was decreed ex-parte.

2. An application under Section 12(2), CPC was filed by the applicants seeking recall of the judgment dated 31.07.2006 claiming themselves to be the owners of the suit property on the basis of registered sale deed dated 14.07.1998 executed in the name of their deceased father Muhammad Hamid Saleem, who expired on 01.04.2004, leaving behind the applicants as his surviving legal heirs and the Respondent No. 1/plaintiff has obtained ex-parte judgment and decree on the back of the applicants by way of fraud, misrepresentation and concealment of actual facts, hence prayed for recalling of ex-parte judgment dated 31.07.2006 and decree 04.08.2006.

3. After hearing the counsel for the applicants and assessing the record, the learned trial Court dismissed the application under Section 12[2], CPC as being hopelessly time barred vide order dated 18.02.2015. Being aggrieved by the order of dismissal, the applicants have preferred the instant revision application.

4. It is, inter-alia, contended that the applicants filed an application under Section 12(2) C.P.C against judgment dated 31.07.2006 and decree dated 04.08.2006, on the ground that the applicants are owners of the property, having registered sale deed in their favour prior to filing of the suit, which facts were concealed from the Court by the respondents, but the learned trial Court without providing an opportunity to the applicants to lead evidence, dismissed their application in limine. Further, he contends that question involved with regard to limitation and locus standi is a mixed question, which is required to be resolved through evidence, hence, impugned orders recorded by both courts below are illegal and ab-intio void. He has relied upon 2020 SCMR 406, relevant para 18 of the judgment is reproduced here with:

"18…………..However, the parties would be at liberty to adduce any fresh evidence in support of their pleadings and the trial Court should ensure that the application under Section 12(2), C.P.C. is decided within 60 days and in case the judgment and decree could not be sustained then restitution of property in terms of Section 144 should also be considered."

1. It is needful to refer here the settled principle, so repeated in the case of Haji Farmanullah vs. Latif-ur-Rehman 2015 SCMR 1708 that:

"4. …….

Thus after tire insertion of this new provision, the validity of a judgment and decree etc, obtained or alleged to have been obtained on the basis of fraud and misrepresentation or from a court having no jurisdiction could only be challenged by moving an application to the same court which passed the final decree, and not by a separate suit.

Therefore, normally where a judgment and decree etc. if appears to have been result of misrepresentation or concealment of facts which, if would have brought on surface, would have earned a right of hearing to a third person (not party to suit) then it would always be requirement of Safe Administration of Justice to accept such application. In short, the Safe Administration of Justice always demands that no right, title or a registered document would lose its vitality without proper and fair right of hearing/adjudication. This has been the reason that remedy of Section 12(2) CPC is not limited to judgment-debtor or party of the suit. Light is taken from the case of Ch. Jalal Din vs. Mst. Asghari Begum & Others 1984 SCMR 586 the Honourable Apex Court held that:

"It is obvious that in Section 12(2) C.P.C, the word 'person' and not the judgment-debtor or his successor-in-interest or the word party to the suit have been used, thus it would not be permissible to import into that provision of law something which has not been mentioned therein. It appears that the law-maker has purposely used the word 'person'. Had the intention of the law-maker been to restrict the right reproduce above do not speak of any bar in approaching this court against the order passed by the Courts subordinate to it and where appeal against that is not provided, thus in my humble view of the matter, I am fortified by a decision in the case of Mst. Safia Mushtaq vs. Wali Muhammad and 18 others (2010 CLC 12) where Hon'ble Mr. Justice Gulzar Ahmed (the then judge of High Court of Sindh) has held as under:

"As regards the maintainability of the Revision Application, as the counsel for the private respondents has himself conceded that the Revision Application can be filed directly in the High Court against an order in exceptional cases, this in itself amounts to negating the objection raised by the counsel for private respondents. In any case, I have gone through the provisions of Section 115 of C.P.C. and find that it gives concurrent jurisdiction to the High Court as well as the District Court to entertain Revision Applications against the order passed by the Courts subordinate to it. Subsection (2) of Section 115, C.P.C. is the provision by which such concurrent jurisdiction is conferred upon the District Court, but such conferment of concurrent jurisdiction is limited where the amount or value of subject matter does not exceed the limits of its appellate jurisdiction. This being limitation placed upon the District Court for entertaining the Revision Application, it has no application to the High Court nor such provision takes away the jurisdiction of the High Court from entertaining the Revision Application against the order passed by a Court subordinate to it. For these reasons I find this revision Application to be maintainable."

1. Prima facie, there is no exception to the instant revision application rather it appears to be falling within four corners, so sketched for entertaining a revision application. Needless to add that entertaining a revision application is something quite different from inclining the same which shall require, prima facie, establishing of grounds, so detailed for accepting a revision application. Without prejudice to this, entertaining a revision for hearing is only in affirmation to legitimate right of challenge an order, so passed by a subordinate court for which no right of appeal is provided, yet substance thereof causes grievance to a litigating party. Accordingly, in view of the above decisions, the instant Revision application is held as maintainable and resultantly the office objection is overruled.

11. As regard the limitation, I would say that this is, normally, a mixed question of fact and law hence when, prima facie, valuable rights are involved it is always better to allow the parties to lead their claim (s) rather to bring a full stop to such valuable rights without their being any due process of law. In the case of Muhammad Bashir & another vs. Province of Punjab through Collector of District Gujrat & Ors 2003 SCMR 83 it was observed as:

"7. ... Legal formalities and technicalities are intended to safeguard the paramount interest of justice and devised with a. view to impart certainty, consistency and uniformity to administration of justice and to secure the same against arbitrariness, errors of individual judgment and mala fides. General speaking the object of a superior Court, while exercising its discretionary jurisdiction, is to foster the ends of justice, preserve the rights of parties and to a right a wrong and, keeping this object in view, it may in equity, set aside or annul a void judgment or decline to enforce it by refusing to intervene in the circumstances of the case.

12. Worth adding that in said case, the valuable rights were given preference over the delay in approaching Court of law. It is worth adding that since filing of instant revision application, notices were issued to respondents; they were served; they engaged counsel and in 2018 Mr. Muhammad Ali Waris Lari, advocate appeared for intervener, whereas the remaining respondents were also served through substituted service including publication but failed to cause their appearance, there appears no reasonable justification for keeping the matter pending when the applicants, prima facie, have a right of hearing but their application, moved under Section 12(2) CPC, was dismissed in limine though their title (registered document) has never been adjudicated as cancelled. Accordingly, both orders are set aside; case is remanded back to the trial Court with directions to frame legal issues and provide an opportunity to the parties to lead their evidence.

The instant Revision Application stands disposed of in the foregoing terms.

(Y.A.) Revision petition disposed of

PLJ 2021 Karachi 190

Present: Salahuddin Panhwar, J.

GOHAR MANZOOR FCA--Appellant

versus

ICA OF PAKISTAN through Secretary of Institute--Respondent

Misc. A. No. 55 of 2010, decided on 21.9.2020.

Chartered Accountants Ordinance, 1961 (X of 1961)--

----Ss. 20-A(1)(2), 20(B) & 20(K)--Allegation of professional misconduct--Direction to investigation--Submission of report--Filing of complaint--Suo-moto action--Report of sub-committee--Imposing of penalty of reprimand by name--Placement of ‘complaint’ before investigation Committee within meaning of is itself not sufficient for initiation of an inquiry unless investigation Committee finds it with substance requiring an investigation into allegation--Ordered investigation also has to be done by an independent investigation Committee--A departure to prescribed procedure would be against settled principle of law i.e things required to be done in manner should be done in same manner or not at all', which is based on "a communi observantia observantia non est recedendum"--'Investigation Committee' even is not competent to investigate an allegation of professional misconduct unless investigation is ordered as specified in foregoing provisions which is lacking in instant matter--Appeal allowed.

[Pp. 192, 193 & 196] A, C & D

Chartered Accountants Ordinance, 1961 (X of 1961)--

----S. 20(A)(B)--Investigation of misconduct--An 'investigation' into allegation of professional misconduct shall not be held unless procedural formalities stood completed which are:

1) "a complaint with all relevant and necessary facts has been laid before investigation Committee;

2) the investigation Committee forms opinion that such complaint requires investigation;

3) has given a notice to such person; [P. 192] B

Mr. Kanwar Majid, Advocate for Appellant.

Mr. Muhammad Ali Talpur, Advocate for Respondent No. 1.

Date of hearing: 21.9.2020.

Order

Through the instant Appeal under Section 20K of the Chartered Accountants Ordinance, 1961 (Ordinance X of 1961) against the order passed by the Council of the Institute of Chartered Accountants of Pakistan dated 25.09.2002.

1. The relevant facts of disposal of the instant M.A are that appellant is the Chartered Accountant and is a registered member of Institute of Chartered Accountants of Pakistan (the Respondent) since 1989 and a fellow member since 1994. The profession of chartered accountancy is regulated by the Chartered Accountants Ordinance, 1961 (hereinafter referred to as the Ordinance); that on 04.05.2000, SECP directed an investigation to be held in respect of affairs of Pakistan PVC and appointed M/s. Majeed Uddin, Azhar Ullah & Co., Chartered Accountants, as inspectors. The inspectors carried out their investigation and submitted a report to the SECP. Based on the said report, the SECP vide letter dated 01.02.2001, filed complaint against the Auditor Firm with the Respondent in respect of the allegations mentioned in the aforesaid letter. It further stated that none of the allegations in the complaint had any substance whatsoever, however vide letter dated 11.05.2001 of the Institute, the complaint of the SECP was forwarded to the Auditor Firm for comments and comments were also called from the Appellant; that after filing of the comments and after detailed examination of the matter, the Investigation Committee concluded that no case of any professional misconduct was made out against the Appellant, nevertheless, the Investigating Committee took up suo-moto action to investigate accounts of Pakistan PVC for the year ended June 30, 1999 in sheer violation of the law and a two members Sub-Committee (comprising of Mr. Khaliq ur Rahman and Mr. Asad Ali Shah) was constituted and the Appellant was required to appear before the sub-committee for the purpose of investigation and after investigation, the sub-committee placed its report before the Investigation Committee wherein the Appellant was not permitted to appear. The Investigation Committee, after recording its finding made a report to the Council. By letter dated 15.04.2002, the Council sought the comments of the Appellant on the report of the Investigation Committee, which were submitted through reply dated 27.04.2002, including his objection and the Council vide Impugned Order held the Appellant guilty of professional misconduct, and imposed on him the penalty of reprimand by name. The Council is now bound, in terms of S. 20-I, to publish its findings and decision in the official Gazette and other publications of the Council which would be detrimental to the reputation and name of the Appellant and his firm. Hence this Appeal.

2. Heard learned counsel for the respective parties.

3. At the outset, it is relevant that a categorical procedure for initiation an inquiry onto allegation of 'misconduct' is provided under Section 20 of the Ordinance which, being relevant, is reproduced hereunder:

20A. (1) The Secretary of the Institute shall, and any member or any aggrieved person may, lay before the Investigation Committee any fact indicating that"

(a) a member of the Institute has prima facie been guilty of any professional misconduct specified in Schedule I or Schedule II; or

(b) a student has prima facie been guilty of any professional misconduct specified in Schedule III.

(2) Where a complaint is received by the Institute that any member of the Institute or student is guilty of professional misconduct referred to in sub-section (1), the complaint shall, with relevant and necessary facts, be laid before the Investigation Committee."

1. A bare perusal of the above leaves nothing ambiguous that a complaint of 'professional misconduct' (with relevant & necessary facts) shall have to be laid before the Investigation Committee in the manner as specifically provided by Section 20-A(2) of the Ordinance and not otherwise?.

6. Taking a pause here, I would further add that placement of such 'complaint' before the investigation Committee within meaning of referred section is itself not sufficient for initiation of/holding an inquiry unless the investigation Committee finds it with substance requiring an investigation into allegation/charge. This is evident from Section 20-B of Ordinance which reads as:

"20-B. Enquiry by the investigation Committee.--(1) If on considering the facts or complaint laid before it under Section 20-A the investigation Committee is of opinion that such facts or complaint require investigation, it shall, after giving a notice to the member of the institute or student whose conduct is in question, hold an inquiry."

From joint reading of the above two provisions, it can safely be concluded that an 'investigation' into allegation of professional misconduct shall not be held unless the procedural formalities stood completed which are:

1) "a complaint with all relevant and necessary facts has been laid before the investigation Committee';

2) the investigation Committee forms opinion that such complaint requires investigation;

3) has given a notice to such person;

7. Worth adding that the word 'shall' is used in both provisions which requires strict adherence to the prescribed procedure. Such ordered investigation/inquiry also has to be done by an independent investigation' Committee. A departure to prescribed procedure would be against the settled principle of law i.e things required to be done in the manner should be done in the same manner or not at all', which is based on "a communi observantia observantia non est recedendum".

1. Having said so, now it would be conducive to refer the impugned order so as to see whether impugned order is in consequence to strict adherence to procedural requirement or otherwise?. Same is reproduced as under:

"Mr. Gohar Manzoor, FCA, Riaz Ahmed Saqib Gohar & Co., Chartered Accountants 5 - Nasim C.H.S. Major Nazir Bhatti Road Off. Shaheed-e-Millat Road Karachi.

Dear Sir, AUDIT OF THE FINANCIAL STATEMENTS OF PAKISTAN P.V.C. LTD., FOR THE YEAR ENDED 30 JUNE 1999

Please refer to your hearing before the Council on 27 April 2002 regarding alleged negligence in the audit of the financial statements of Pakistan P.V.C. Ltd, for the year ended 30 June 1999. The Council considered your views in the matter as well as the report of the Investigation Committee and would advise you as follows:

(i) The allegations leveled in the SECP's letter dated 01 February, 2001 were considered to have no impact on the fair presentation of the financial statements. Consequently, the Council concluded that you had not committed any misconduct on account of such allegations.

(ii) The Council also considered the allegation that you had not applied appropriate audit procedures to verify the revaluation of fixed assets in accordance with the ISAs, especially the ISA on the subject of "Using the Work of an Expert". The Council concurred with the Investigation Committee's finding, that our reliance on the expert to be inconsistent with your knowledge of the business, the historical financial performance and financial position of the company.

Based on reasons described, the Council found you to be guilty of misconduct of an act or default discreditable to a member of the Institute, under clause (5) of the Part 4 of Schedule I attached to the Ordinance, as you had failed to appropriately modify your opinion in the report to the shareholders."

The Council has reprimanded you by name for the said professional misconduct."

1. Perusal of above reflects that complaint moved by SECP by letter 1st February 2001 was considered and Council was of the opinion that there was no misconduct on the part of petitioner whereas Paragraph No. 2 which is apparently sou-moto exercise by the committee as it nowhere indicates compliance of required three steps (detailed above). In absence thereof, neither an investigation can be held nor report thereof can be considered because report is submitted within meaning of Section 20-B(3) of Ordinance which says as:

(3) After the conclusion of inquiry, the investigation Committee shall report the result of the inquiry to the Council.

1. Here, I would refer to relevant portion of the case of Institute of Chartered Accountants of Pakistan through Secretan/ vs. Abu Bakar Bilwani 2009 CLD 735 which reads as:

"8. The provisions of the Ordinance as provided in Chapter VA heading "Misconduct" from sections 20-A to 20-F show that any member of the institute if he has committed misconduct as defined in the Ordinance he is to be proceeded against in accordance with these provisions and the enquiry proceedings are to be conducted accordingly through independent Investigation Committee whose findings require to be independently examined by the Council as a final authority.

For clarity, I would add that if an investigation is not initiated/held, as required by Section 20-A(2) and 20-B of the Ordinance the same can't be said to have been legally processed hence no action in consequence to such action can legally be stamped.

1. According to learned counsel the Secretary or any member or any aggrieved person was competent to indicate any professional misconduct specified in Schedule I or Schedule II, whereas in this case such complaint was moved by SECP and committee reached on the decision that there is no misconduct whereas with regard to Paragraph No. 2 that exercise was suo moto by the authority, is illegal and ab-initio void as only Secretary, Member or aggrieved persons were competent to initiate before the concerned investigation Committee. He has relied upon case law reported as 2005 CLD 737 particularly Cite Bar C which is that:

"From perusal of the material on record we are unable to agree with the contention of Messrs I.H. Zaidi and Syed Zaki Muhammad that the proceedings for professional misconduct against the petitioner were initiated in accordance with the provisions of the Ordinance of 1961. There is nothing on record to indicate that the factum of publication of the advertisement was placed or laid by the Secretary of the Institute before the Investigation Committee or that any member or any aggrieved person had brought to the notice of the Investigation Committee the alleged professional misconduct in getting published the advertisement. From the letter dated 11-4-2002 of the Institute it is to be inferred that without resorting to the provisions of Section 20A of the Ordinance of 1961, the Manager of Respondent No. 2 issued the said letter purporting to be a show-cause notice requiring the petitioner to show cause as to why proceedings be not initiated against him by the Investigation Committee under Section 20B of the Ordinance of 1961. As a matter of fact, the advertisement in the Daily Business Recorded of 10th April, 2002 was required to be placed before the Investigation Committee by in accordance with the provisions of Section 20A of the Ordinance of 1961 but the said requirement was not complied with. Provisions or Section 20B were also violated inasmuch as before placing or laying the advertisement before the Investigation committee for holding an inquiry and preparing a report of the result of the inquiry, a show-cause notice was issued the petitioner.

It is a settled principle of law that if a Statute requires a thing to be done in a particular manner or lays down the manner in which it is to be done or accomplished then it is obligatory on the part of the person concerned to allow the provisions of the Statute in letter and spirit and slat all methods/manners in doing or accomplishing the object are followed. It is also a settled principle of law that lie provisions of the statute are to be adhered to strictly and no provision is to be left as surplus, redundant or naugatory. Respondent No. 2 in initiating the disciplinary proceedings against the petitioner committed a grave and serious illegality in overlooking the provisions of Section 20A and 20B of the Ordinance of 1961 and in violation thereof, issued a show-cause notice and the investigation Committee proceeded to investigate/ inquire into the guilt of the petitioner. Such conduct/procedure cannot be held to be legal and proper irrespective of the act that the material on record might have made out a prima facie case against the petitioner of being guilty of confessional misconduct. In the circumstances, we are constrained to hold that Respondent No. 2 had failed to the proceed in accordance with law against the petitioner and he proceedings for professional misconduct initiated against him were defective being in contravention and violation of statutory provisions."

12. To above, I would take only one exception that provision of Section 20-A(1) also includes 'any aggrieved person' but would prefer in standing with the legal position that 'investigation Committee' even is not competent to investigate/inquire an allegation/ charge of professional misconduct unless the investigation/inquiry is ordered as specified in foregoing provisions which is lacking in the instant matter. Accordingly, impugned order is set aside to the extent of Paragraphs No. 2 and 3, whereas, Paragraph No. 1, being not challenged, is left as it is. Needless to add that Committee may exercise such power if law permits but strictly in accordance with prescribed procedure and law.

1. In view of above the structure passed by the committee, which is mentioned in the last paragraph of the impugned whereby counsel reprimanded with regard to professional misconduct is removed. Needless to mention that any fresh inquiry, if conducted, shall not be considered as barred by any limitation and laches on the same facts.

(Y.A.) Appeal allowed

PLJ 2021 Karachi 197

Present: Arshad Hussain Khan, J.

Mrs. WIEB ROSEMARIE DAKHAN and another--Plaintiffs

versus

SHAHNAWAZ DAKHAN--Respondent

Suit No. 133 of 2018, decided on 17.11.2020.

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

----Ss. 12 & 54--Civil Procedure Code, (V of 1908), S. 151--Suit for declaration, partition, permanent injunction and mense profit--Third party interest--Preliminary consent decree--Appointment of Nazir as administrator--Report of Nazir--Filing of objection--Challenge to--Right to seek accounts of income--Direction to--There is no dispute in respect of legal heirs of to deceased and further by consent of defendant a preliminary decree has already been passed and Nazir has been appointed administrator to conduct inquiries in respect of estates of deceased plaintiffs being legal heirs of deceased; within their rights to seek accounts of income in respect of agriculture; lands of deceased--Stance of defendant appears to be misconceived, as such, defendant who is admittedly in possession and control of agricultural lands is liable to render counts of income from said agricultural lands to plaintiffs--CMA disposed of.

[Pp. 203 & 204] B & C

Muhammadan Laws--Principles of--

----Para, 56--Vested inheritance--A ‘vested inheritance’ is share which, vests in an heir at moment of ancestor's death--If heir dies before distribution, share of inheritance which has vested in him will pass to such persons as are his heirs at time of his death. [P. 202] A

PLD 1990 SC 1 and PLD 1962 SC 291 ref.

Rana Ikramullah, Advocate for Plaintiff No. 1.

Mr. Zeeshan Abdullah, Advocate for Plaintiff No. 2.

Mr. Ravi Pinjani, Advocate for Defendant.

Date of hearing: 8.9.2020.

Order

This order will dispose of Application [CMA 4128/2020] filed on behalf of the plaintiffs .under Order 151 CPC seeking appointment of Nazir of this Court for the purpose to ascertain the annual income of the agricultural property of the deceased and directions to the defendant to deposit the respective shares of the Plaintiffs with the Nazir with effect from 17.07.2015.

Briefly stated facts as narrated in the affidavit in support of the application are that the plaintiffs and the defendant are widow, sister and brother of deceased Abdul Rahim Dakhan who died on 17.07.2015 leaving behind the legal heirs viz. (i) Ms. Wieb Rosemarie Dakhan [widow], (ii) Ms. Firdous Mahmood Hussain [sister] and (iii) Mr. Shahnawaz Dakhan [brother] to inherit his estate as per Sunni Hanafi Law of Inheritance. It has been stated that the deceased, at the time of his death, left behind Various properties including residential plot in Karachi, agricultural properties in district Shikarpur and a house in" village Dakhan, Taluka Gari Yasin, District Shikharpur, Sindh. It has been further stated that after death of the deceased, the defendant being the brother started looking after the affairs of the deceased's properties and having possession and complete control over of the properties, has adopted brazen tactics to ostracize the other legal heirs (plaintiffs) from the affairs of said properties with the ulterior motives to deprive them from their lawful share of inheritance in the properties of the deceased. It has been also stated that the plaintiffs though consistently requested the defendant to disclose the accounts and details of the Deceased's assets to" them being shareholders by virtue of inheritance, however, he refused to provide any detail of the accounts. It has been further stated that pursuant to the order, passed by this Court, the concerned Revenue Authorities have confirmed and duly verified that the deceased left behind 201 Acres of agricultural lands in District Shikarpur. The said land is in possession of the defendant and is under Cultivation, which generates significant income and the defendant has "failed to provide proper and accurate accounts since he took possession of the said lands. It has been stated that the plaintiffs are entitled to their respective shares in respect of the annual income from the agricultural lands left behind by the deceased and as such in order to ascertain the annual income of the agricultural properties, Nazir of this Court may be appointed and further the defendant may also be directed to deposit the respective shares of the plaintiffs with the Nazir.

1. The defendant in reply to the application has filed Counter Affidavit wherein while refuting the allegations has stated that the application is not maintainable being beyond the scope of above Suit. It has been stated that the deceased was a co-owner alongwith the defendant in respect of agricultural lands and plot in Clifton. Whereas the ownership of the village house solely vests with defendant. It has been also stated that the entire 201 acres of agricultural properties are' not in possession of the defendant as a significant large portion thereof is in possession of various third parties who claim their title from various arrangements with the deceased. It has been further stated that any and/or all income, which may have been generated from the agricultural lands after the death of the deceased has been a result of the sole efforts and investments of the defendant and as such the plaintiffs are not entitled to any account of the income generated by the defendant from the agricultural lands. Furthermore, such income having been generated solely by the defendant through his personal efforts, cannot be considered as part of the estate of the deceased. It has been further stated that relief sought in the application is in the nature of a preliminary decree which is beyond the scope of Section 151 CPC and as such the application being not maintainable is liable to be dismissed.

2. The plaintiffs preferred not to file any rejoinder to the above counter affidavit.

3. Leaned counsel for the plaintiffs in support of the application affidavit has contended that the plaintiffs being the legal heirs of the deceased, under the law are entitled to the shares in the. properties left by the deceased. However, since the defendant, who is in possession and control of the deceased's properties has continued to deprive the plaintiffs from their lawful rights and shares in the properties. It is also contended that pursuant to the order passed by this Court, the concerned Revenue Authorities have confirmed and duly verified that the deceased left behind 201 Acres of agricultural lands in District Shikarpur and as such the plaintiffs, till the court finally administers the estates of the deceased, are entitled to have shares in the income generated from the cultivation of the above agricultural lands of the deceased. Since the defendant despite requests has failed to either give any share in the said income and or any details of the income being generated from the agricultural properties, the plaintiffs have constrained to file the present application as such it would be just and proper to appoint Nazir of this court to ascertain the annual income of the agricultural property of the deceased.

4. On the other hand, learned counsel for the defendant, while reiterating the contents of the counter of affidavit to the instant application has contended that instant application is not maintainable being frivolous and misconceived in nature and as such the same is liable to be dismissed. It is also contended that the plaintiffs are neither entitled to any accounts of the income realized from the agricultural lands nor the income generated therefrom, which income has been realized as a result of the sole efforts and expenses incurred by the defendant. Further contended that after the death of the deceased at all material times the defendant has been solely maintaining and looking after the agricultural lands in the defendant's possession without any assistance from the plaintiffs and the defendant has made his own personal investments towards cultivation of crops, payment of taxes and protecting the land from encroachment. Further contended that since parties herein have not formed any partnership arrangement and or joint venture in respect of the agricultural lands, as such the plaintiffs are not entitled to any of the portions of the income from the above agricultural lands. It is also contended that possession of the defendant over the deceased's agricultural land being co-shares, in absence of proof of ouster or exclusion of other co-sharers could not be termed as wrongful possession and as such he is not accountable for the profits before partition of the property in question. Further since the defendant is not in wrongful possession of the property, the plaintiffs cannot raise any claim for mense profit. Lastly, it is contended that the relief sought in the application is in the nature of a preliminary decree which is beyond the scope of Section 151, CPC and as such the application being not maintainable is liable to be dismissed. Learned counsel in support of his arguments has relied upon the cases of Muhammad Zahid through Legal Heirs vs. Ghazala Zakir and 7 others [PLD 2011 Karachi 83], Khair Muhammad Khatian and 5 others vs. Liaquat Ali G. Kazi [2017 CLC Note 177], Shaukhat Zaib and 8 others vs. Khuram Zaib and 3 others [2018 CLC 970], Mst. Azra Parvez and 3 others vs. Sheikh Ashfaq Hussain and 7 others [2015 CLC 1695], Ghulam Jilani and 10 others vs. Abdul Kadir and 17 others [1996 CLC 1847], Mrs. Saadia Muzaffar through her Attorney vs. Mrs. Khadija Manzur and another [2006 CLC 401] and Muhammad Rafique and others vs. Bibi Asifa and others [2013 CLC 1446].

5. I have heard learned counsel for the parties, perused the contents of the application [CMA 4128/2020] and the counter affidavit filed in reply of the same as well as the case law relied upon by learned counsel for the defendant.

6. From the record, it appears that the present suit was filed for declaration, administration, partition, permanent injunction and mesne profit, in respect of estates, left by the deceased namely Abdul Rahim Dakhan. The stance of the plaintiffs in the case is that the deceased who died issueless leaving behind widow-Ms.Wieb Rosemarie Dakhan (Plaintiff No. 1), sister-Ms. Firdous Mahmood Hussain (Plaintiff No. 2) and brother-Mr. Shanawaz Dakhan (defendant) and the plaintiffs being legal heirs are entitled to their respective shares in the properties left by the deceased. It is alleged by the plaintiffs that the defendant is in possession and control of the properties in question who has been exclusively managing them and receiving profits thereof and .has not given the plaintiffs the true and full accounts of such profits whereas the plaintiffs being the legal heirs of the deceased are entitled to the (sic).

7. Record further transpires that on 06.02.2019 this Court on the statement of the defendant's counsel that the defendant has no intention to create third party interest in any manner in the suit properties, disposed of the injunction application filed by the plaintiffs. Further in the same order by consent of the defendant's counsel a preliminary decree was also passed in respect of properties mentioned in sub-paras (b) to (q) and 50% un-disputed share in the property mentioned in sub-para (a) of para 3 of the plaint and Nazir of this Court was appointed as administrator to conduct the inquires in respect of the afore-mentioned properties. Whereas for remaining 50% disputed share in the Clifton property mentioned in sub-para (a) of Para No. 3 of the plaint, issues were framed and the parties were directed to lead evidence before Nazir of this Court.

8. On 12.09.2019 the Nazir was directed to verify the revenue record i.e., Deh Form VII in respect of deceased's agricultural lands from the concerned Mukhtiarkar. Pursuant thereto the Nazir submitted his report dated 04.10.2019, relevant portion whereof for the sake of ready reference is reproduced as under:

"2. It is respectfully submitted that on 01.10.2019 Mr. Rana Ikramullah, Advocate for the plaintiff, Mr. Tanvir Asraf, Advocate for Defendant and Mr. Abdul Haq, Mukhtiarkar Ghari Yasin appeared. However such Mukhtiarkar vide his letter dated 30.09.2019 alongwith Annexures as Annexed "A" has submitted details report and precisely it is submitted as per his office record, all land consisting 201-38 acres as mentioned in such letter is in the name of deceased Abdul Rahim Khan S/o Muhammad Hassan Khan."

The defendant on the said report filed objection upon which on 24.12.2019 the Nazir was directed to obtain certified copy of Deh Form-VII of the land mentioned at Sr. Nos. 3 and 4 in the report of the Mukhtiarkar dated 04.12.2019. In compliance of the order, the Nazir through his report dated 22.08.2020 submitted CTC of Deh Form-VII. Relevant portion of the said report is reproduced as under:

"2. It is respectfully submitted that in response to notices to concerned Mukhtiarkar for providing the CTC in respect of deceased property, the Mukhtiarkar (Revenue), Garhi Yasin vide his letter dated 12.08.2020 submitted CTC of Deh VF-VIIB Entry No. 11 dated 28.02.2008. which are enclosed with such letter annexed as “A”.

The plaintiffs on the basis of the Nazir's report dated 04.10.2019 filed the present application.

1. The stance of the defendant is that he, besides being 50% of owner of the said land also holds shares in the remaining 50% of said land being one of the legal heirs of the deceased, is solely maintaining and looking after their agricultural lands in the defendant's possession without any assistance from the plaintiffs, as such the plaintiffs, who, are only entitled to the shares in the land once the property is partitioned, cannot claim any right over the income generated from the said agricultural lands, as the income of the said land being generated as a result of the sole efforts and expenses incurred by him (the defendant).

Under the provisions of Muhammadan Law, on the death of a Muslim his property devolves on his legal heirs and they are entitled to inherit according to the hares prescribed by Muslim Law. No formal attestation of the mutation is necessary. In this regard Para 56 of D.F. Mullah's Principles of Muhammadan Law, third Edition 2012 by M. Mahmood, may be referred which reads as follows:

"56, Vested inheritance.--A 'vested inheritance' is the share which, vests in an heir at the moment of the ancestor's death. If the heir dies before distribution, the share of the inheritance which has vested in him will pass to such persons as are his heirs at the time of his death."

A perusal of above referred para clearly shows that as soon as a Muslim dies the estate vests in his heirs and they become owners.

The Honourable Supreme Court of Pakistan in the case of Ghulam Ali and 2 others vs. Mst Ghulam Sarwar Naqvi [PLD 1990 SC, 1], inter alia, has held as under:

"The main points, of the controversy in this behalf get resolved on the touchstone- of Islamic law of inheritance. As soon as an owner dies, succession to his, property opens.. There is no State intervention or clergy's intervention needed for the passing of the title immediately, to the heirs. Thus it is obvious that a Muslim's estates legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the estate by an intermediary is unknown to Islamic Law of inheritance as compared to other systems. Thus there being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction."

In the said case, the Honourable Supreme Court, also held as under:

"It is not for the first time that it is being, so held. Even earlier commentators on Islamic Law (its inheritance branch in particular) have indicated the same approach with reference to some decided cases. The heir in possession was considered to be in constructive possession of the property on behalf of all the heirs in Spite of his exclusive possession, e.g., the possession of the brothers would be taken to be the possession of their sisters, unless there was an express repudiation of the claims of the sisters by the brothers. Hyder Khan vs. Chanda Khan (5011 C 691 (All)." [emphasis supplied]

In another case the Honourable Supreme Court of Pakistan in the case of Syed Mehdi, Hussain Shah vs. Mst. Shadoo Bibi [PLD 1962 SC 291], inter alia, has observed as under:

".... In a suit for administration the relief to be granted is that the estate of the deceased is to be administered under the decree of Court. This means that the court will assume the functions of an administrator, it will realise the assets, will discharge the debts and legacies, will take an account of the income of the property and will distribute the assets amongst those entitled to it."

1. Reverting to the case in hand, from the revenue record, i.e., Deh Form VII, produced by the concerned Mukhtiarkar through the Nazir, prima faciereflects that the agricultural lands mentioned in the said Deh Form VII are in the name of the deceased.

12. In the instant case since there is no dispute in respect of the legal heirs of the deceased and further by consent of the defendant a preliminary decree has already been passed and the Nazir has been appointed as administrator to conduct inquiries in respect of the estates of the deceased, therefore the plaintiffs being legal heirs of the

deceased are within their rights to seek accounts of income in respect of agricultural lands of the deceased.

In the backdrop of the above discussion, the stance of the defendant appears to be misconceived, as such, the defendant who is admittedly in possession and control of the agricultural lands is liable to render the accounts of the income from the said agricultural lands to the plaintiffs.

1. The case laws cited by learned counsel for the defendant have been perused and considered with due care and caution but are found distinguishable from the facts of the present case, and hence the same are not applicable to the present case.

2. In view of the above discussion, the application [CMA No. 4128/2020] is disposed of with direction to the Nazir to enquire and ascertain as to who is in possession of deceased's agricultural lands as well as about the annual income thereof from the date of death of deceased and submit his report within four weeks hereof. Once the report is filed thereafter, plea of the plaintiffs about depositing of their respective shares in the income will be considered, subject to any objection.

(Y.A.) Application CMA disposed of

PLJ 2021 Karachi 204 (DB)

Present: Muhammad Shafi Siddiqui and Muhammad Faisal Kamal Alam, JJ.

NASIRUDDIN ABBASI--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Finance Division Govt. of Pakistan Islamabad and 4 others--Respondents

C.P. No. D-3152 of 2018, heard on 4.3.2020.

Constitution of Pakistan, 1973--

----Art. 199--Premature retirement--Receiving of all pensionary dues--Early retirement scheme--Submission of indemnity by petitioner--Non-statutory rules--Maintainability--Writ jurisdiction--Past and closed transaction--All legal dues, including pensionary dues has been received by petitioner--Entire pension of Petitioner was commuted and he has received Rs. 748,084.00--Record of this case shows that this amount was paid to Petitioner under an Early Retirement Scheme, relevant document of which is filed as Annexure R/6--He has availed a premature retirement on medical ground under Early Retirement Scheme which was not a subject matter in retirement benefits case--After receiving handsome amount and signing document of 'Undertaking cum Indemnity' about receiving full and final settlement, after passage of so many years, present petition has been instituted--Entire stance of present Petitioner is misconceived in nature--Respondent being a private Bank since having no statutory rules, thus it is not amenable to writ jurisdiction--Petition dismissed. [Pp. 207 & 208] A, B, C & D

2015 SCMR 911, 2012 PLC (CS) 218, 2014 PLC (CS) 393 & NLR 2013 Labour 1 ref.

Syed Munawar Ali Shah, Advocate for Petitioner, Mr. Aslam Pervaiz Khan, Assistant Attorney General for Respondents No. 1 & 2.

Mr. Faisal Mehmood Ghani, Advocate for Respondents 3 to 5.

Date of hearing: 4.3.2020.

Judgment

Muhammad Faisal Kamal Alam, J.--Through the present petition, the petitioner is primarily seeking enforcement of Judgment passed by Honourable Supreme Court in Suo Moto Action regarding retirement benefits of the employees of Banks and reported in 2018 SCMR 736 (retirement benefit case). Petition contains the following prayer clause:

a) That, this Honourable court may be pleased to direct the official Respondents to adopt the view of the Judgment passed by Honourable Judge Supreme Court of Pakistan and give the pensionary benefits as per the Judgment of Apex Court.

b) That this Honourable Court may be saddled upon the Respondents.

Any other relief(s) which this Honourable Court deems fit, just and proper in favour of the Petitioner may be granted."

1. Syed Munawar Ali Shah, learned Advocate for Petitioner has argued that after the pronouncement of above retirement benefit case, the Respondents-3, 4 and 5 (United Bank Limited) should have extended the benefit as contained in the above Judgment to the present Petitioner, even though Petitioner was retired on 30.11.2012 after seeking premature retirement on medical grounds. He contends that in view of this changed situation the present Petition is filed.

2. The above arguments were controverted by learned counsel representing the Respondent bank, on the ground that the above retirement benefit case is not applicable to Petitioner, because he has already taken all retirement dues as mentioned in the Final Settlement Sheet, appended with the Counter Affidavit of Respondent Bank, as Annexure R/6a. He has further referred to Column No. 1 of this document to point out that an ex-gratia payment of 30 months gross salary of Rs. 14,94,690/- (rupees fourteen lacs, ninety four thousand, six hundred and ninety) was also given to Petitioner. After settlement of his entire service and retirement dues, the Petitioner executed an Undertaking cum Indemnity 'dated 18.2.2013, which is filed as Annexure R/3 with the Counter Affidavit. The learned counsel for the Respondent Bank has raised question of maintainability of present petition and has relied upon the following case law.

3. 2015 SCMR 911 (Muhammad Ashraf and others vs. United Bank Limited and others).

4. 2012 PLC (C.S.). 218 (State Bank of Pakistan through Governor and another vs. Imtiaz Ali Khan and others).

5. 2014 PLC (C.S.) 393 (Abdul Wahab and others vs. Habib Bank Ltd and others).

6. NLR 2013 Labour 1 (Independent Newspaper Corporation (Private) Ltd vs. Punjab Labour Appellate Tribunal Lahore and others).

7. The learned D.A.G. has mainly argued on the basis of concise statement filed by Respondent No. 1 (Finance Division, Government of Pakistan), which has basically highlighted the recommendation of State Bank of Pakistan in respect of those employees of Banks who were retired before and after privatization of such Banks.

8. Arguments heard and record perused.

9. Record produced with the Counter Affidavit of Respondent Bank to the main Petition has not been disputed. Learned Advocate for Petitioner has acknowledged that the Petitioner himself had requested for premature/optional retirement by his letter dated 7.11.2012, addressed to Respondent Bank, which is available in the record as Annexure R/4 (of the Counter Affidavit of Bank). Acceding to his request the Respondent Bank, responded vide their correspondence of 3.1.2013 (Annexure R/5 of Counter Affidavit) by stating, inter alia, that considering the long association of Petitioner with the Respondent Bank, the latter has decided to make additional ex gratia payment equal to 30 months gross salary, to the former (Petitioner). As per the Final Settlement Sheet (as referred above) the Petitioner received an amount of Rs. 2,468,522.00 (rupees twenty four lacs, sixty eight thousand, five hundred and twenty two only). This document also bears the signature of Petitioner as well as above 'Undertaking cum Indemnity' [Annexure R/3, dated 18.2.2003], acknowledging that all legal dues, including retirement/pensionary dues has been received by the Petitioner. Perusal of Final Settlement Sheet shows that entire pension of Petitioner was commuted and in lieu thereof he has received Rs. 748,084.00 ( Seven Lac forty eight thousand and eighty four only). Record of this case shows that this amount was paid to the Petitioner under an Early Retirement Scheme, relevant document of which is filed as Annexure R/6 (with Counter Affidavit).

7. The above Judgment of Honourable Supreme Court in retirement benefit case has been carefully examined. Discussion of Respondent Bank starts from page 740. Retired employees of Respondent Bank are divided in three categories; (i) original retirees, (ii) recently retired and (iii) retrenched employees. Petitioner does not fall in any of the categories, because; he has availed a premature retirement on medical ground under the afore-mentioned Early Retirement Scheme (dated 16.11.2007), which was not a subject matter in the above retirement benefits case. Secondly and admittedly, Petitioner got commutation of his entire pensionary benefits (as stated above) and thus cannot reopen a past and closed transaction through this petition, which is filed after five years of receiving the entire service and retirement benefits. Present petition is also adversely affected by the principle of laches and the Petitioner counsel could not successfully explain this inordinate delay in filing the same. The above referred case of State Bank of Pakistan (2012 PLC (C.S.) 218), inter alia, relates to retrenchment scheme of employees of State Bank of Pakistan and grievances arising therefrom. The Apex Court rejected the plea of employees of State Bank of Pakistan who have availed benefit under a Scheme (voluntary Golden Handshake Scheme). It is held that doctrine of laches is applicable to the employees/respondents (of the reported case) because they could neither demonstrate infringement of any right nor approached the legal forum at a time when they had a legal and genuine grievance, while observing that once these employees opted to avail benefit under, the. Scheme after due deliberation, then after six years they cannot start litigation against the organization. Similar is the present case, where admittedly after receiving the above mentioned handsome amount and signing the above document of 'Undertaking cum Indemnity' about receiving the full and final settlement, after passage of so many years, the present petition has been instituted. The entire stance of present Petitioner is misconceived in nature.

Thirdly, the reported decisions cited by counsel for Respondent Bank about maintainability of present Petition, is applicable to the facts of present case, because Respondent Bank being a private one, writ of the nature cannot be issued to it. It has been ruled by the Honourable Supreme Court in the case of Muhammad Ashraf (2015 SCMR 911), co-incidentally relating to the present Respondent Bank, that Respondent being a private Bank since having no statutory rules, thus it is not amenable to writ jurisdiction. In this reported case also the issue of pensionary benefits was involved.

1. In view of the above discussion the present petition is devoid of any merit and is dismissed along with the listed applications.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 1

Present:Ch. Muhammad Iqbal, J.

MUHAMMAD ISRAFEEL etc.--Petitioner

versus

PROVINCE OF PUNJAB etc.--Respondents

W.P. No. 35693 of 2020, heard on 13.8.2020.

Colonization of Government Land (Punjab) Act, 1912--

----S. 10(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Renewal of leases--Issuance of statement of conditions--Temporary cultivation scheme--Unrestricted public auction--Change of character of charagah--Scope of--Public purpose--Powers of Government to grant lease--Principle of approbate and reprobate--Maintainability--After scanning policies on subject for grant of lease or proprietary rights, it clearly evinces that Charagah land has expressly been excluded from any further allotment/ grant--Charagah lands/state land have expressly been excluded from every grant/allotment, as such, its any alienation or grant of proprietary rights thereof are not in consonance with policies--Charagah land cannot be converted into state land for its onward allotment against any sort of claim and same shall not be used for any other alternative purpose except with prior permission of Board of Revenue and any change of character of Charagah land was only subservient to any manifestly described wider scope of glorified “public purpose”, which change of character/nature of Charagah is only vested with Board of Revenue who has to objectively ascertain public purpose with judicious application of mind by demonstrating all superior objectives of public purpose--Respondent-Government in order to save state land situated within prohibited zone/ Charagah land is only empowered to grant leases for specific period--Admittedly all petitioners availed benefits of Govt. of conditions of lease issued from time to time by Government of Punjab under Section 10(2) of Act, 1912 and now they are challenging vires of said Notification--They are beneficiaries of policies/statement of conditions issued by Govt. of Punjab under Section 10(2) of Act, as such, case of petitioners is fully hit by principle of approbate and reprobate--It is settled law that constitutional Courts ordinarily avoid to interfere in policy matter or policy decision making of Govt. if it is not in violation of any law or Constitution of Pakistan, 1973--Even no argument has been advanced as to how policy is against any provision of law or Constitution inasmuch as petitioners have also not proved any mala fide of government regarding making and issuance of policy/notification whereas under Section 10 of Act, Govt. is competent to issue statement of conditions/policies--It is un- deniable that this Court in exercise of its constitutional jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 may annul an order or a policy framed by Executive, if it is proved to be violative of law & Constitution and is product of malafides but no vice, flaw, infirmity has been pointed out to demonstrate that impugned policy is violative to any law--Hence, from this aspect of matter, this writ petition is not maintainable--State agricultural land situated within prohibited zone cannot be disposed of permanently as these are valuable lands and have generally to be kept reserved for expansion of towns and other ancillary urban requirements--Land in question falls within prohibited zone or is a state Charagah land, as such, petitioners have failed to establish any right and also failed to point out any illegality and perversity in impugned policy which does not require any interference by this Court in its constitutional jurisdiction--Petitions were dismissed.

[Pp. 12, 14, 19, 20, 22, 24 & 25] A, B, C, D, E, F, G, H & I

PLD 1987 SC 107, 2001 SCMR 1959, 2007 SCMR 569, PLD 2014 SC 1, PLD 2017 SC 83, 2019 MLD 1210 and 2015 SCMR 58 ref.

Malik Muhammad Arshad Kundi, Advocate for Petitioners.

Mr. Ghulam Rasool Sial, Advocate for Petitioners (in Writ Petition No. 35654 of 2020).

Mr. Maqsood Ahmad, Advocate for Petitioners (in Writ Petition No. 35405 of 2020).

Malik Sarbuland Naich, Advocate for Petitioner (in Writ Petition No. 35573 of 2020).

Mr. Imtiaz Hussain Khan, Advocate for Petitioner (in Writ Petition No. 35714 of 2020).

Ch. Mujtaba Hassan Tatla, Advocate for Petitioners (in Writ Petition No. 35733 of 2020).

Ch. Abdul Ghaffar, Advocate for Petitioners (in Writ Petition No. 35603 of 2020).

Mr. Abdul Razzaq Chadhar, Advocate for Petitioner (in Writ Petition No. 35622 of 2020).

Mr. Azmat Mustafa Khan Lodhi, Advocate for Petitioners (in Writ Petition Nos. 35785 & 35961 of 2020).

Mr. Sameer Ijaz, Advocate for Petitioners (in Writ Petition No. 35860 of 2020).

Mr. Imtiaz Ahmed Khan, Advocate for Petitioners (in Writ Petition Nos. 36001, 36002, 36003 & 36004 of 2020).

Malik Shehzad Fida Kamboh, Advocate for Petitioner (in Writ Petition Nos. 35999 & 36000 of 2020).

Ch. Haroon-ur-Rasheed Gujjar, Advocate for Petitioner (in Writ Petition Nos. 35502, 35525, 35490, 35491, 35492, 35495, 35498, 35499 of 2020).

Mr. Arshad Jahangir Jhoja, Additional Advocate General along with Faizan Ahmad Riaz, Assistant Commissioner, Shorkot & Muhammad Qasim, Assistant Commissioner, Jhang for Respondents.

Date of hearing: 13.8.2020.

Order

Through this single order, I intend to decide the above titled writ petition along with connected Writ Petition Nos. 35654, 35405, 35573, 35714, 35733, 35603, 35622, 35785, 35961, 35860, 36001, 36002, 36003, 36004, 35999, 36000, 35502, 35525, 35490, 35491, 35492, 35495, 35498, 35499 of 2020 as common questions of law and facts are involved in all these writ petitions.

1. Through these writ petitions, the petitioners have challenged the vires of Notification No. 2106-2019/753-CL(I) dated 13.09.2019 issued by the Colonies Department, Government of the Punjab being illegal, void, without jurisdiction, corum non-judice and unconstitutional.

2. Brief facts of the instant writ petitions are that all the writ petitioners are/were lessees over the respective chunks of the state land as given in the writ petitions. The leases were renewed by the Government of Punjab/Board of Revenue, through statement of conditions. Government of Punjab promulgated fresh policy bearing No. 2106-2019/753-CL(I) on 13.09.2019 whereby it has been decided that all the State agricultural lands situated in Prohibited Zone, Municipal Limits or State Charagah land be leased out for temporary cultivation through unrestricted public auction for a term of three years. In all these petitions the vires of the Policy dated 13.09.2019 as well as the issuance of proclamation of auction of said lands has been called in question.

3. I have heard the arguments of the learned counsels for the petitioners as well as the learned law officer and gone through the record with their able assistance.

4. Admittedly, suit land is state agricultural land situated within the prohibited zone or municipal limits and state Charagah land which was allegedly allotted to the petitioners on lease under Temporary Cultivation Scheme, 1978 and last extension was granted in terms of Notification dated 13.09.2019 (under challenge) till 30.06.2020. The Government of Punjab while invoking the powers under Section 10 (2) of the Colonization of Government Land (Punjab) Act, 1912 (hereinafter called as the “Act”) issues statements of conditions/policies for the lease of state land. For ready reference, Section 10 of Act ibid is reproduced as under:-

“10. Issue of statements of conditions of tenancies.

(1) The Board of Revenue subject to the general approval of the Government may grant land in a colony to any person on such conditions as it thinks fit.

(2) The Provincial Government may issue a statement or statements of the conditions on which it is willing to grant land in a colony to tenants.

(3) Where such statements of conditions have been issued, the Collector may, subject to the control of Board of Revenue, allot land to any person, to be held subject to such statement of conditions issued under sub-section (2) of this section, as the Collector may by written order declare to be applicable to the case.

(4) No person shall be deemed to be a tenant or to have any right or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of the Collector. After possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto.”

(emphasis supplied)

Under the above provisions of the Act, Colonies Department, Government of the Punjab/Board of Revenue issued statements of conditions for the lease of the state land under Temporary Cultivation Scheme initially in the year 1944 whereafter from time to time issued notifications/statements of conditions/policies on different occasions for the lease of the state land. The subject matter of these writ petitions is to the extent of land situated within the prohibited zone or the state charagah land, as such, it is appropriate to reproduce the history of notifications issued under Section 10(2) of the Act ibid by the Colony Department, Board of Revenue and Government of the Punjab on different occasions in this regard as under:--

(i) In the notification dated 07.02.1968, the state land was to be leased for a period of 5 years with certain exemptions. Relevant clause of the aforesaid notification is reproduced as under:

2. Period of tenancy (cultivated). The state land already under cultivation including that leased out under Temporary Cultivation Conditions on yearly tender, shall, henceforth, be leased out for a period of 5 years;

Provided that such state land situated 10 miles of the outer limits of a first class municipality, 5 miles of the limits of other municipalities/Town Committees/ Cantonment Boards, one mile from a railway station and that earmarked as Charagah, shall be leased out for a period of 3 years;

Provided further that the existing leases shall, however, be valid for their present terms and thereafter leases shall be given under the present Conditions.

(emphasis supplied)

According to Clause 4 of the aforesaid notification, the period of unit and tenancy of land is mentioned as under:

1. Period of unit and tenancy (uncultivated). The un-cultivated Banjar Qadim State land which requires little effect for leveling etc., to be brought under plough and which has sweet sub-soil water or for which supply of canal water can be arranged immediately shall be leased out for a period not exceeding ten years, in lots ranging upto 50 acres, Provided that such falling within 10 miles of a first class municipality, 5 miles of the outer limits other municipalities/Town Committees/Cantonment Boards, or one mile of railway station or earmarked as Charagah, shall be leased out in lots not exceeding 25 acres each.

(emphasis supplied)

Clause 24 of the aforesaid notification emphases that no proprietary rights will be conferred on any lessee under any circumstances. The said clause is also reproduced as under:

Peaceful Surrender. The lease shall terminate at the expiry of the period of lease and shall not be extended. No proprietary rights will be conferred on any lessee under any circumstances whatsoever. The lessee shall surrender the land peaceably to the Government at the expiry or sooner determination of the lease for breach of conditions, or for any other reason.

(emphasis supplied)

(ii) As per notification dated 24.04.1971, the land which is lying within the prohibited zone, is also excluded from grant of proprietary rights. Relevant clause of the aforesaid notification is reproduced as under:

“2. Exceptions. The following categories of land shall not be leased out under these conditions:--

(a) land which lies within 10 miles of the outer limits of a Corporation, within five miles of the outer limits of a First Class Municipal Committee or within three miles of the outer limits of any other Municipal Committee/Town Committee.

(b) Land which is already leased out for a fixed period, till the expiry of lease period or termination thereof which ever is earlier;

(c) Land reserved as Charagah; and

(d) Land which has been reserved for sale, lease or allotment under any approved scheme.

(emphasis supplied)

(iii) The notification dated 12.06.1972 restricts from permanently disposing of land falling within the prohibited zone. Relevant portion of the aforesaid notification is reproduced as under:

“There is state agricultural land situated within 10 miles of the outer limits of a Corporation, five miles of the outer limits of a first class Municipality and three miles of the outer limits of any other Municipal committees/town Committee. This area is at present on yearly lease for agricultural purposes. The tenure of these lease will expire after Rabi 1972. Such areas cannot be disposed of permanently as these are valuable lands and have generally to be kept reserved for expansion of the towns and other ancillary urban requirements. These were deliberately excluded from various land disposal schemes introduced by Government for time to time.”

(emphasis supplied)

(iv) According to Clause 2 of the notification dated 07.02.1980, the land situated within the prohibited zones or comprising charagahs was given on temporary leased for a period of two years as per following criteria:

1. As regards the State lands which are not covered under the afore-said Notification and are still lying un-utilized as Baqaya Sarkar, it has been decided that the same should be disposed of in the following manner:

(i) Such lands as are outside the prohibited zones other than Charagah be given on temporary cultivation lease by open auction for a period of five year in the lots not exceeding 12-1/2 acres per family to the landless tenants or self-cultivation owners who own less than four of land.

(ii) Such lands as are situated within the prohibited zones or comprise Charagahs be given on temporary cultivation leases by open auction for a period of two years in the lots not exceeding 12-1/2 acres per family to the landless tenants or selfcultivating owners of less than four acres of land. As regards the existing lease of such lands expiring in Rabi, 1098 no further extension should be allowed and the land becoming so available be similarly disposed of by open auction after every two years.

(emphasis supplied)

(v) The policy notification dated 23.10.1986 Clause 2(a) whereof allows the leasing of the land lying within the prohibited zone or Charagah for a period of two years. Relevant portion of the aforesaid Clause is reproduced as under:

“2. The Government of the Punjab has been pleased to lift the ban imposed on the leases of State land. Future disposal of State land will be as follows:

(a) State agricultural land may continue to be leased out as before through restricted auction, open to landless or self-cultivating tenants owing land 4 acres or less. Lands situated in the prohibited zone or State Charagah land which is mainly meant for the extension of Abadi Deh or establishment of Government projects etc. may be leased out through restricted auction for a period of two years. For other State lands that already under plough will also be leased out for a maximum period of two years while in case of Banjar land the lease period may extend upto 5 years.”

(emphasis supplied)

(vi) The notification dated 20.09.1993 allowed the leasing of the state land through auction situated in prohibited zone or Charagah for a period not exceeding two years. Relevant part of the said notification is reproduced as under:

2. a) Agricultural state land, situated within Municipal limits, should be leased out in lots not exceeding 12-1/2 acres, for a period of two years through general open auction. Any agriculturist/Cultivator will be eligible to take part in auction proceedings.

b) Agricultural State land situated within the prohibited zone may continue to be leased out as before, through restricted auction.

c) ……

d) State land within the Prohibited zone, charagah and cultivated state land may be leased out for a period not exceeding two years which Banjar state land situated outside prohibited zone may be leased out for a period of 5 years. The land will be re-auctioned after the expiry of prescribed period.

(emphasis supplied)

(vii) The clause 2 of notification dated 24.06.1999 lays down a criteria for lease of land situated in prohibited zone or Charagah land. The same is defined as under:

“2. The temporary Cultivation Lease Scheme was promulgated in the Province in 1993vide this office circular memo under reference wherein it was laid down that all available agricultural state land should be leased out after carrying lots upto 12-1/2 acres. State land situated within Municipal limits is to be leased out through general open auction for a period of two years. The state land situated within prohibited zone, charagah and already cultivated land is to be leased out for a period of two years and Banjar state land situated outside the prohibited zone is to be leased out for a period of five years through restricted open auction to the landless tenants or self cultivating owners of less than four acres of land who are bonafide residents of the chak/village/revenue estate where the land is situated.

(viii) The auction and re-auction of the lease of state land under Temporary Cultivate Lease Scheme was suspended vide notification dated 09.10.1999. Relevant portion of the aforesaid notification is reproduced as under:

“To review the availability of state land in the Province, it has been decided to suspend the auctions and re-auctions of the state land under Temporary Cultivation Lease Scheme with immediate effect.”

(ix) vide notification dated 09.06.2001, further extension of the lease of state land situated within municipal limits and/or state charagah land was not extended any further and possession of the land was ordered to be resumed after expiry of the lease. Relevant portion of the aforesaid notification is reproduced as under:

1. The Government of the Punjab in the Colonies Department has been pleased to decide that leases given under Temporary Cultivation Lease Schemes issued from time to time in respect of land situated within the municipal limits, prohibited zone, charagah and that reserved for permanent schemes/public purposes should not be extended after expiry of the existing lease period and the possession should be resumed forthwith.

2. It is further decided that all the state land of the categories mentioned in para 2 above which may be lying un-allotted or which may become available after expiry of the lease period, may henceforth be leased out in the following manner:-

a) Agricultural state land situated within municipal limits, of the categories mentioned in para 2 above should be leased out in lots not exceeding 12-1/2 acrs for a period of two years through open auction. Any agriculturist/cultivator will be eligible to take part in auction proceedings.

(emphasis supplied)

(x) The above restrictions withdrew through notification dated 13.01.2010 and the lease of land situated within the prohibited zone was allowed on certain conditions. Relevant portion of the aforesaid notification is reproduced as under:

“1). Selected agricultural state land, situated within prohibited zone/Municipal limits or Charagah land, may be leased out in lots not exceeding subsistence holding (i.e. half a square, or half a rectangle or 12-1/2 acres which-ever is more) for a period of one year through restricted auction…”

(emphasis supplied)

(xi) Through notification dated 11.05.2010, the lease period for land situated within the prohibited zone was extended upto 30.05.2010. Relevant portion of the aforesaid notification is reproduced as under:

“2. I am directed by the Competent Authority to convey you that the times schedule for the following three schemes has been extended upto 30.05.2010:-

a) Allotment of state land under Temporary Cultivation Lease Scheme for one year situated within the Prohibited Zone and Charagah.”

(emphasis supplied)

(xii) Under notification No. 917-2013/932-C.L(I) dated 26.11.2013, selected agricultural land or charagah land situated within the prohibited zone was allowed to be leased out on certain conditions. Relevant portion of the aforesaid notification is reproduced as under:

“1). Selected agricultural state land, situated within prohibited zone/Municipal Limits or Charagah land, may be leased out in lots not exceeding subsistence holding of 100-kanals for a period of one year through open auction …”

(emphasis supplied)

According to the Act as well as all above said notifications/policies made under Section 10(2) of the Act ibid on the subject issued by the Colonies Department, Government of the Punjab/Board of Revenue, Punjab a constant approach was/is followed throughout that land situated within the prohibited zone or state Charagah land can only be given on lease under Temporary Cultivation Lease Scheme only through auction for specific period and after lapse of stipulated lease period the lessee was/is duty bound to peacefully vacate/surrender the possession of land in favour of the state. Such areas/land cannot be disposed of permanently as these are valuable lands and have generally to be kept reserved for expansion of the towns and other urban requirements.

1. It is pertinent to elaborate the salient characteristic of the Charagah Land as well as its expected objects and purposes of utilization as described in the policy of Charagah land dated 04.02.1998, relevant text whereof is reproduced as under:-

“i) The Charagah land around the village abadis as also alongwith roads shall not be converted into State land and shall not be used for any purpose except with the prior permission of the Board of Revenue and that for a public purpose only. A recommendation in this behalf should invariably be initiated by the District Collector through the Commissioner of the relevant division.”

After scanning the policies on the subject for the grant of lease or proprietary rights, it clearly evinces that the Charagah land has expressly been excluded from any further allotment/grant. This principle is manifestly described in Notification dated 3rd September 1979 (under Temporary Cultivation Lease Scheme) and Notification dated 20th April, 1983 issued by Colonies Department, Government of the Punjab. Further, the Colonies Department issued notification No. 3215-79/3973-C II dated 3rd September, 1979 for grant of proprietary rights under Temporary Cultivation Lease Scheme. In Clause 2 of the aforementioned notification, the charagah land has been excluded from every grant which is reproduced as under:

1. Exceptions and Reservations. Unless it is otherwise specifically provided, the following lands shall be deemed to have been expressly excluded from every grant under these conditions;

(i) lands already allotted under permanent grants;

(ii) lands reserved or earmarked but not yet allotted under permanent grants;

(iii) charagahs;

(iv) lands lying within a belt of:--

(a) ten miles running along and on the outer side of outer limits of a Corporation;

(b) five miles running along and on the outer side of the outer limits of a Municipality;

(c) three miles running along and on the outer side of the outer limits of a Town Committee or a Mandi Town;

(v) lands which are/may be reserved for any purpose.

(emphasis supplied)

Through another Notification No. 1925-83/1253-CLI dated 20th April, 1983 the Colonies Department, Govt. of the Punjab issued terms & conditions for the grant of proprietary rights in the state land given on temporary leases and also excluded the following state lands including Charagah from every grant. The relevant clause is as under:

Exceptions and Reservations. Unless it is otherwise specifically provided, the following categories of State Land shall be deemed to have been expressly excluded from every grant under these conditions;

i) land already allotted under permanent grants;

ii) lands already reserved or earmarked for permanent grants or for a public purpose;

iii) reserved Charagah or Charagah Baqaya in Colony chaks;

iv) lands lying within 10 (ten) miles of the outer limits of a Municipal Corporation, within 5 (five) miles of the outer limits of a Municipality or with 3 (three) miles of the outer limits of a Town Committee/Mandi Town;

v) land lying within 5 (five) miles of the outer limits of a Cantonment Board area;

vi) lands allotted or leased out under service grants viz, Lambardari grants, House/Mule Breeding tenancy, Livestock Breeding tenancy and River Action Scheme.

(emphasis supplied)

The subsequent Notification No. 7402-86/374-CLI dated the 1st Feb, 1995 further clarified the term prohibited Zone mentioned in notification of 1979 and 1983 for the purpose of grant of proprietary rights and vide Notification No. 1997-2001/1174-CLI dated 9th July, 2001, the following lands has been excluded from every grant, Clause 3 is as under:-

1. Exceptions and Reservations. Unless it is otherwise specifically provided the following categories of state land shall be deemed to have been expressly excluded from every grant to be made under these conditions.

2. Land already reserved under any other scheme including permanent grants/schemes and service grants.

3. Reserved Charagah or Charagah Baqaya in colony Chaks;

4. Lands lying inside municipal limits and within prohibited zone which will be upto

i) 10 (Ten) miles beyond the outer limits of a Metropolitan/Municipal Corporation as existed on 1.1.2001.

ii) 5 (Five) miles beyond the outer limits of a Municipal Committee as existed on 1.1.2001

iii). 3 (Three) miles beyond the outer limits of a Town Committee/Mandi Town as existed on 1.1.2001.

(emphasis supplied)

From the perusal of the afore quoted notifications as well as Clause-2 of notification dated 03.9.1979, it is abundantly clear that Charagah lands/state land have expressly been excluded from every grant/allotment, as such, its any alienation or grant of proprietary rights thereof are not in consonance with the policies. Further, from the perusal of aforementioned policies, it is very much clear that Charagah land cannot be converted into state land for its onward allotment against any sort of claim and the same shall not be used for any other alternative purpose except with the prior permission of the Board of Revenue and any change of character of the Charagah land was only subservient to any manifestly described wider scope of glorified “public purpose”, which change of character/nature of the Charagah is only vested with the Board of Revenue who has to objectively ascertain the public purpose with the judicious application of mind by demonstrating all superior objectives of public purpose. Otherwise, its character cannot be modified as per policy on the subject.

It is proved on record that the respondent-Government in order to save the state land situated within the prohibited zone/ Charagah land is only empowered to grant leases for specific period and in the said notification it was specifically mentioned that if at any time the Government may require the said land for public purpose, the lessees will vacate the same. The notifications dated 04.04.2016 & 13.09.2019 were also issued on the same footing by Colonies Department, Government of Punjab/the Board of Revenue by invoking the jurisdiction under Section 10(2) of the Act ibid. The notifications dated 04.04.2016 and 13.09.2019 are reproduced as under:-

Phone No. 99210799

No. 922.2016/261-CL-I, Board of Revenue, Punjab, Lahore, dated 04.04.2016.

To

1. All the Commissioners, in the Punjab.

2. All the District Collectors, in the Punjab.

3. Managing Director. Cholistan Development Authority, Bahawalpur.

Subject: EXTENSION IN TIME LINE FOR PRO-POOR INITIATIVE IN PUNJAB. (TEMPORARY CULTIVATION LEASE SCHEME)

I am directed to refer to this office circular No. 2111-2013/757-CL-I dated 09.09.2013, on the subject captioned above.

1. The Government of the Punjab, Colonies Department issued two notifications No. 222-2010/117-CL-l and No. 224-2010/119-CL-I, dated 13.01.2010 for grant of state land for temporary cultivation on lease falling within and outside the prohibited zone and charagah. The said leases expired on 31.12.2015.

2. Now, the Government has decided to extend the lease period of the subject leases till 30.6.2016 on the existing terms and conditions. After this date, the said land will be resumed and existing the lessees will be allowed to reap their existing crops. The lessees will not cultivate the land beyond the cut-off date. All the lots will then be put up to open auction and first right of refusal will be given to the existing lessees.

3. You are, therefore, requested to proceed further in the matter accordingly.

Secretary (Colonies)‏ Board of Revenue, Punjab.

(emphasis supplied)

…………………….

GOVERNMENT OF THE PUNJAB LAW AND PARLIAMENTARY AFFAIRS DEPARTMENT

NOTIFICATION

(70 of 2019)

18 September, 2019

Notification No. 2106-2019/753-CL(I), dated 13.09.2019, issued by Government of the Punjab, Colonies Department, Board of Revenue is hereby published in official Gazette for general information:

“GOVERNMENT OF THE PUNJAB COLONIES DEPARTMENT

Dated Lahore, the 13th September, 2019

NOTIFICATION.

No. 2106-2019/753-CL(I). In exercise of the powers conferred under Section 10 of the Colonization of Government Lands (Punjab) Act, 1912 (V of 1912) and in supersession of Notifications No. 224-2010/117-CL-I, dated 13.01.2010 and No. 917-2013/932-C.L(l), dated 26.11.2013, Governor of the Punjab is pleased to issue the following Statements of the Conditions for grant of leases of certain available State agricultural lands situated within prohibited zone, Municipal limits or State charagah land for temporary cultivation with Immediate effect:

1. Existing leases. The temporary leases of the State agricultural lands situated within prohibited zone or State charagah land in the Punjab shall be extended till 30.06.2020 in favour of existing lessees who shall pay arrears of rent from 30.06.2016 till 30.06.2020 with annual increase of ten percent (10%). After expiry fresh auctions shall be conducted for a term of three years under these Statements of the Conditions.‏

2. Procedure for new lease.(1) Selected agricultural State land situated within prohibited zone, Municipal limits or charagah land may be‏ leased out in lots not exceeding subsistence holding of one hundred kanal (100- kanal) for a term of three years through an open auction and the eligibility for participation therein shall be as under:-

(a) the landless tenants or seIf-cultivators not owning more than four acres of land;

(b) bona fide residents of the same chak, village or revenue estate, where such State land is situated;

(c) in the absence of the above category of persons, bona fide residents of the adjoining chaks, villages or revenue estates where such State land is situated;

Explanation: bonafide residence of a person shall be determined, inter alia, on the basis of the address mentioned in the computerized National Identity Card.

(d) eligibility of tenants or self-cultivators will be determined on the basis of Khasra Girdawari of last five years; and

(e) one family shall not be eligible to get lease for more than one lot.

Explanation for the purpose of this clause, the word “family” means husband, wife or wives, un-married children excluding major married son of the lessee living independently.

(2) No employee of the Provincial or Federal Government, autonomous bodies and corporations or their dependents or minors shall be eligible to participate for lease of State land.

(3) The Assistant Commissioner concerned shall prepare schedules of State land in lots not exceeding subsistence holding of one hundred (100) kanals in respect of each village and get them approved by the District Collector concerned.

(4) For auctioning of State land on Lease, the reserve rent shall be determined by District Rent Assessment Committee on the basis of the prevailing market rent of similar land in the vicinity.

(5) The possession of State land shall stand reverted to the State after expiry of the lease term and it shall be re-auctioned under these Statements of the conditions.

(6) Publicity of the open auction shall be made in the revenue estate concerned through print media, electronic media, beat of drums and announcements over loud speakers at least one week before the date of auction. In addition to this, announcements over loud speakers installed in the village mosques shall be made again before the auction is actually conducted. Record of such publicity shall be maintained by the auctioning officer.

(7) The open auction to be conducted by the Assistant Commissioner concerned shall be held in the village or revenue estate concerned in a common assembly and the proceedings shall be recorded in writing.

(8) Each participant shall deposit one fourth of the reserve rent to the Auctioning Officer and affix his signatures or thumb impression on the terms and conditions of lease before commencement of the auction proceedings.

(9) After completion of bid in respect of each lot, signatures or thumb impressions of all the participants and village Lambardar shall be‏ obtained on the “Fard Nilam” in authentication of the genuineness of the auction proceedings.‏

(10) The “Fard Nilam” appended to these statements of the conditions shall be properly, legibly and completely filled in at the time of holding of open auction of State land by the Auctioning Officer.

(11) Auction proceedings shall be subject to the approval by the District Collector after having been satisfied with the genuineness of the proceedings.

(12) The District Collector shall approve or decide otherwise of auction proceedings within a period of fifteen days. In case of rejection of the auction proceeding, the highest bidder shall be provided an opportunity of hearing before such rejection and reasons shall be recorded in writing.‏

(13) The possession of State land shall be delivered immediately after auction proceedings have been confirmed by the District Collector and subject to payment of the lease rent for one year by the successful bidder and after adjustment of the one-fourth of the reserve rent already paid by him.

(14) Rent for the first year of the lease shall be paid by the lessee within fifteen days from the date the lease is granted and in the ensuing years, it shall be paid on or before the fifteenth day of January each year and such rent shall be for the whole year i.e. for Kharif and Rabi harvests.

(15) The rent for the second year and subsequent years shall be paid with fifteen percent (15%) annual increase.

(16) In case of default in payment of rent for a period of more than six months from the due date, the lease shall be liable to be cancelled by the District Collector provided that before passing such order for cancellation, the Collector shall afford the lessee an opportunity of being heard. All outstanding dues shall be recovered as arrears of land revenue.

(17) The lessee shall not assign, sublet, mortgage or transfer in any manner the leased area or any part thereof.

(18) In case of death of the lessee during the currency of the lease, the tenancy shall devolve on the legal heirs for the un-expired period with the approval of Collector of Tehsil.

(19) No defaulter of rent or lease money shall be eligible to take part in the auction proceedings.

(20) The Board of Revenue, Punjab and the District Collector, at any stage, shall have the power to stop, postpone and cancel the auction proceedings.

(21) Plantation of local species of trees shall be carried out by the lessee in the leased land as per instructions issued by the Government from time to time.

(22) The lessee shall execute a bond or undertaking on non-judicial stamp paper to the effect that if during the currency of the lease, the land in entirety or a part thereof, is required by the Government for any public purpose, the lessee shall surrender its peaceful possession without demur immediately and shall not claim any compensation in respect of development effected on the leased land or that of trees planted thereon. However, no lessee shall be ejected before he has reaped the main standing crops or is paid full compensation at market rates for such crops. He shall also undertake to hand over possession of the land peacefully to the Collector or his nominee on the expiry of the lease term.

(23) If at any time, it is found that the lessee has obtained the lease through fraud, misrepresentation and concealment of facts, the lease shall be cancelled forthwith by the Collector.

(24) Leases under these statements of the conditions shall be governed under the Colonization of Government Land (Punjab) Act, 1912 read with the General Colony Conditions 1938 and the temporary cultivation lease conditions issued by the Government of the Punjab in 1944.

MEMBER/SECRETARY

GOVERNMENT OF THE PUNJAB COLONIES DEPARTMENT”

7. Admittedly all the petitioners availed the benefits of the statements of conditions of lease issued from time to time by the Government of the Punjab under Section 10(2) of the Act, 1912 and now they are challenging the vires of the said Notification No. 2106-2019/753-CL(I) dated 13.09.2019. They are beneficiaries of the policies/statement of conditions issued by the Government of Punjab under Section 10(2) of the Act, as such, the case of the petitioners is fully hit by principle of approbate and reprobate. Reliance is placed on the cases titled as A.R. Khan vs. P.N. Boga through Legal Heir (PLD 1987 SC 107). For ready reference, relevant portion of the judgment (supra) is reproduced as under:

“It is a well-accepted principle that a party cannot both approbate and reprobate. He cannot to use the words of Honeyman, J., in Smith v. Baker (SC 350) at the same time blow hot and cold. He cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid, and at another say it is void for the purpose of securing some further advantage. See also per Lord Kenyon, C.J., in Smith V. Hodson (2 Sm. L C 140).”

The Hon’ble Apex Court in another case titled as M/s. Home Comforts vs. Mirza Rashid Baig & others (1992 SCMR 1290) held that:

Thereafter fresh ejectment application should have been filed against M/s. Home Comforts as tenant. Contention is untenable for the reason that at the very outset of the ejectment proceedings when written statement was filed such objection was not raised that ejectment application should be dismissed as non-maintainable simply for the reason that Ibrahim son of Hussain Ali was not tenant but positive assertion was made in the written statement that M/s. Home Comforts were the tenant and not only that but stand was taken that default of 8 months in the payment of rent was not committed as alleged against Ibrahim son of Hussain Ali in the application for eviction and proper explanation was given in details as to how rent was paid by M/s. Home Comforts for the period of default. In the evidence also attempt was made to prove that there was no default and rent was paid to the landlady. In such circumstances it was rightly held by the learned Rent Controller that the tenancy is admitted by Home Comforts and default is proved against them. No person can be allowed to approbate and reprobate in the same breath.

Reliance is also placed on the case titled as Federation of Pakistan vs. Amir Hamza (2001 SCMR 1959), relevant portion whereof is reproduced as under:

The very factum of his invoking jurisdiction of the Tribunal and preferring proceedings before this Court, negates legal and constitutional objections raised by him. It may be observed that “the appellant” cannot be permitted to approbate and reprobate in the same breath i.e. to challenge the constitutionality and jurisdiction of forum which he has himself invoked for seeking relief under the law.

In Noor Muhammad, Lambardar vs. Member (Revenue), Board of Revenue, Punjab, Lahore & Others (2003 SCMR 708), the August Court of the country observed as under:

In our opinion, this objection is not available to him for the reason that learned counsel on behalf of legal heirs of Subedar Asghar Ali had also filed a separate petition being No. 1651-L of 2002, assailing the same order, therefore, he cannot be allowed to blow hot and cold in one breath.

In another case titled as Overseas Pakistanis Foundation & others vs. Spn. Ldr. (Retd.) Syed Mukhtar Ali Shah & another (2007 SCMR 569), the August Court of the country observed as under:

It is also a settled law that nobody is allowed to approbate and reprobate as law laid down by this Court in Ghulam Rasool’s case PLD 1971 SC 376.

1. The petitioners called in question the policy/notification dated 13.09.2019 for the auction of lease hold rights of the state land/charagah land situated within the prohibited zone through unrestricted public auction giving a fair and transparent chance to all the people of the said vicinity on the sacred principles of equality and indiscrimination as well as to fetch fair suitable amount qua the utilization of the state assets and also to protect or safeguard the public interest and issue the instant policy. The policy can only be called in question before this Court through constitutional jurisdiction on the grounds:

(i) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.

(ii) The change in policy must be made fairly and should not give impression that it was so done arbitrarily on any ulterior intention.

(iii) The policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc.

(iv) If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.

(v) It is dehors the provisions of the Act or legislations.

(vi) If the delegate has acted beyond its power of delegation.

But the policy under question is neither inconsistent with law nor issued in violation of the constitution rather it safeguards the state property which is ultimate property of public at large. It is settled law that constitutional Courts ordinarily avoid to interfere in the policy matter or the policy decision making of the Government if it is not in violation of any law or Constitution of Pakistan, 1973. Even no argument has been advanced as to how the policy is against any provision of law or the Constitution inasmuch as the petitioners have also not proved any mala fide of the government regarding making and issuance of the policy/notification dated 13.09.2019, whereas under Section 10 of the Act, the Government is competent to issue the statement of conditions/policies. It is un- deniable that this Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 may annul an order or a policy framed by the Executive, if it is proved to be violative of law & Constitution and is product of malafides but no vice, flaw, infirmity has been pointed out to demonstrate that the impugned policy is violative to any law. Hence, from this aspect of the matter, this writ petition is not maintainable. Reliance is placed on the case titled as Dossani Travels Pvt. Ltd. & others vs. Messrs Travels Shop (Pvt) Ltd. & others (PLD 2014 SC 1) wherein the Hon’ble Supreme Court of Pakistan has observed as under:

“26. One of the seminal principles of the Constitution of Islamic Republic of Pakistan is the concept of trichotomy of powers between the Legislature, Executive and the Judiciary. This principle underpins the rationale that framing of a government policy is to be undertaken by the Executive which is in a better position to decide on account of its mandate, experience, wisdom and sagacity which are acquired through diverse skills. The Legislature which represents the people enacts the law and the law so enacted acquires legitimacy. The judiciary on the other hand, is entrusted with the task of interpreting the law and to play the role of an arbiter in cases of disputes between the individuals inter se and between individual and the State. We may remind ourselves that judiciary neither has sword nor purse. The legitimacy and respect of its judgments is dependent on peoples’ confidence in its strict adherence to the Constitution, its integrity, impartiality and independence. In changing times and judicialization of political issues, a certain degree of judicial activism by fearless and impartial judiciary is also essential for maintaining its integrity and peoples’ trust. In most of the modern democracies, judiciaries have been called upon to provide wider meanings to various provisions of the Constitution so as to meet the challenges of modern times and to fill the gap between the law and the requirements of substantive justice. Every institution has to play its role in enforcing the Constitution and the law. It is a multi-disciplinary exercise. However, implementation of rule of law is the primary function of judiciary. This role is multi- dimensional and the most challenging facet of this role is to keep various institutions and the judiciary itself within the limits of their respective powers laid down in the Constitution and the law. The legitimacy of its judgments does not arise from the beauty of the language or the use of populist rhetoric. Rather it radiates from the dynamism reflected in interpreting the Constitution and in particular its Fundamental Rights provisions, in judicial restraint displayed in deference to the principle of trichotomy of powers, and in an impersonal and impartial application of law.”

In the same judgment, the Hon’ble Supreme Court further held as under:-

52……..(i) that the order of the learned High Court dated 24-6-2013 passed in Writ Petition No. 7253 of 2013 is violative of the principle of trichotomy of powers, which is one of the foundational principles of the Constitution of Islamic Republic of Pakistan;

(ii) that it is not the function of the High Court exercising jurisdiction under Article 199 of the Constitution to interfere in the Policy Making Domain of the Executive;

(iii) that the learned High Court in the exercise of its Constitutional jurisdiction directed selection of Hajj Group Organizers through bidding process and thereby substituted the criterion laid down in the Hajj Policy framed by the Ministry of Religious Affairs without hearing the appellants/Hajj Group Organizers and others who had already been allocated quota and had made arrangements for intending Hujjaj, which is not tenable in law;

(iv) that the High Court can under Article 199 of the Constitution annul an order or a Policy framed by the Executive, if it is violative of the Constitution, law or is product of mala fides. However, nothing has been placed before this Court to indicate that the Hajj Policy challenged before this Court seriously suffered from any of these infirmities; and

(v) that Ministry of Religious Affairs shall continue to regulate the operation of Hajj i.e. enrollment, registration and allocation of quota every year in the light of a fair and transparent policy and the guidelines to be laid down by this Court in the detailed judgment.”

In another case titled as Messrs Power Construction Corporation of China Ltd. through Authorized Representative vs. Pakistan Water and Power Development Authority through Chairman WAPDA & 2 others (PLD 2017 SC 83), the Hon’ble Apex Court held as under:

“27……Such decision falls within the realm of the Public Policy and the Courts in the exercise of their powers of judicial Review, ordinarily, do not interfere therewith and exercise judicial restrain, as has been held by this Court not only in the case, reported as Dossani Travels Pvt. Ltd and others v. Messrs Travels Shop Pvt. Ltd. and others (PLD 2014 SC 1) but also in the judgment, reported as Cutting of Trees for Canal Widening Projects, Lahore: In the matter of Suo Motu Case No. 25 of 2009 (2011 SCMR 1743). While we may not totally agree with the interpretation of the paragraph 2(a) of the Appendix-I of the Guidelines, as has been done by the learned High Court by way of the impugned judgments but such an exercise is not necessary by this Court, as in our opinion, the Constitutional Petition filed by the Petitioner Company was not maintainable, as it sought to encroach into the domain of the Policy Matters in respect whereof the judicial restrain is to be exercised.”

Reliance is also placed on the cases titled as Dr. Akhtar Hassan Khan & others vs. Federation of Pakistan & others (2012 SCMR 455), JDW Sugar Mills Ltd. & Others vs. Province of Punjab & others (PLD 2017 Lahore 68), Advocate Mian Asif Mehmood vs. Federation of Pakistan through Principal Secretary & 2 Others (2019 MLD 1210) & Jurists Foundation through Chairman vs Federal Government through Secretary, Ministry of Defence & others (PLD 2020 SC 1).

9. According to the statement of conditions /policies made under Section 10(2) of the Act ibid, the land situated within the prohibited zone or state charagah land has been excluded from the grants and proprietary rights of the said land cannot be given to anyone and in this regard, the policies made under the Act, 1912 are consistent since 1944 to onward. The state agricultural land situated within prohibited zone cannot be disposed of permanently as these are valuable lands and have generally to be kept reserved for expansion of the towns and other ancillary urban requirements. So far as the

arguments of some of the learned counsels that the petitioners’ application for getting proprietary rights are still pending and land was outside the prohibited zone at the time of initial allotment, suffice it to say that as per the provisions of the Act ibid as well as in all the policies/notifications reproduced above, the state land situated within prohibited zone/Charagah land were excluded from any kind of grant of proprietary rights and mere pendency of any application automatically does not create any legal right. Moreover in the judgment cited as Commissioner Multan Division, Multan and others vs. Muhammad Hussain and others (2015 SCMR 58), the Hon’ble Supreme Court of Pakistan has settled that accrual of cause of action will be considered from the date of filing of application for getting proprietary rights and status of the land whether it is situated within prohibited zone or otherwise would also be determined as it was on the date of application and not from the date of initial lease. Relevant portion of the judgment (supra) is reproduced as under:

“…. in the absence of rules or settled instructions on the subject, it seems fair that the limits of a prohibited zone ought to be reckoned with effect from the date of written application by a qualified and eligible allottee for conferment of proprietary rights.

Admittedly the land in question falls within the prohibited zone or is a state Charagah land, as such, petitioners have failed to establish any right and also failed to point out any illegality and perversity in the impugned policy which does not require any interference by this Court in its constitutional jurisdiction.

1. In view of above, these writ petitions are dismissed in limine being devoid of any merits. However, all the petitioners are allowed to participate in the auction proceedings subject to fulfillment of the terms and conditions mentioned in the Notification No. 2106-2019/753-CL(I) dated 13.09.2019 issued by the Colonies Department, Government of the Punjab.

(Y.A.) Petitions Dismissed

PLJ 2021 Lahore 25[Rawalpindi Bench Rawalpindi]

Present: Sadiq Mahmud Khurram, J.

NOSHEEBA NAZEER--Petitioner

versus

SAJJAD AHMED and 2 others--Respondents

W.P. No. 3228 of 2020, decided on 11.1.2021.

Constitution of Pakistan, 1973--

----Art. 199--Illegal and improper detension of minor--Agreement to hand over custody of minor--Rebuttable presumption--Challenge to--Minor namely Ali Raza has stated that he wanted to live with his mother, petitioner--Prima facie no bond of love and affection exists between minor and his father as he had not lived with his father ever prior to his handing over to him only recently--Questions concerning custody and guardianship of minors cannot be settled by a private compromise or even by arbitration--An agreement of this nature, therefore, cannot be enforced--If an agreement is entered into by a female which appears unconscionable on face of it, there is a rebuttable presumption that agreement was entered into by coercion and undue influence--No effective rebuttal is forthcoming to show as to why petitioner would voluntarily part with her minor son--Hence purported agreement to hand over custody of minor to Respondent No. 1 has no value in eyes of law--This Court finds it proper and in interest and for welfare of minor to hand over custody of minor Ali Raza to his mother, petitioner, with whom he had lived since his birth and bond of love and affection exists between mother and child and at present there does exist no reason to break same. [P. 28] A, B & C

1995 PCr.LJ 307, 1997 MLD 1562, PLD 1970 Karachi 619 ref.

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

----Ss. 4(2), (5), 9(i) & 25--Constitution of Pakistan, 1973, Art. 199--Guardianships & custody--Parental jurisdiction--Direction to--It is observed that “guardian” as defined in S. 4(2) means a person providing de facto or de jure care of person or property of a minor--Such a person may or may not have custody of a minor--This Court, in exercise of its jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan 1973 has to exercise parental jurisdiction and is not precluded in any circumstance, from giving due consideration to welfare of minor and to ensure that no harm or damage comes to him physically or emotionally by reason of breakdown of family tie between parents--Custody of minor namely Ali Raza is ordered to be handed over to petitioner--It has been brought to notice of Court that Respondent No. 1 intends to file an application under section 25 of Guardian & Wards Act, 1890--It is, therefore, directed that if and when such an application is filed by Respondent No. 1, Guardian Judge shall decide same strictly in accordance with law and expeditiously, preferably within a period of two months of filing of same--It is also directed that petitioner shall produce minor before Guardian Judge if, as and when directed by said Court so as to allow Sajjad Ahmad, father of minor, to meet with minor--However, Sajjad Ahmad shall not be allowed to take minor out of premises of Court of Guardian Judge--It is also made clear that any such petition filed before Court of Judge Guardian Court shall be decided on its own merits, without being influenced in any manner by any observation made in this order.

[P. 29] D & E

2018 SCMR 427 and 2018 SCMR 1991 ref.

Raja Muhammad Faraz Khan, Advocate for Applicant/ Respondent No. 1.

Mr. Shabbir Ahmed Mirza, Advocate with Petitioner.

Mr. Saleem Murtaza Mughal, Additional Advocate General with Muhammad Zaheer Inspector/SHO P.S. Chountra, District Rawalpindi.

Date of hearing: 11.01.2021.

Order

In compliance of the order dated 28.12.2020 the minor detenu namely Ali Raza, aged about 7 years, has been produced before the Court by Sajjad Ahmed (Respondent No. 1), his father.

1. This petition has been filed by the petitioner regarding the alleged illegal and improper detention of her minor son namely Ali Raza by Sajjad Ahmed (Respondent No. 1). As per contents of this petition, the minor was removed from the custody of the petitioner by Sajjad Ahmed (Respondent No. 1) on 18.11.2020. The petitioner has also appended her affidavit alongwith the present petition regarding the correctness of the contents of this petition. No counter affidavit has been filed by Sajjad Ahmed (Respondent No. 1 and the father of the alleged detenue) so as to challenge the contents of the affidavit. The minor Ali Raza had been living with his mother since his birth and had joined his father only recently i.e. on 18.11.2020. Learned counsel for the Respondent No. 1 has presented an alleged sworn affidavit of the petitioner dated 18.11.2020 executed on a stamp paper, to the effect that in compliance with the decision of the Jirga the petitioner had surrendered custody of the minor Ali Raza of her own accord and with her own consent to Respondent No. 1 namely Sajjad Ahmed on 18.11.2020. It is further stated in the alleged affidavit that the petitioner shall not approach any forum or Court to seek the return of her minor son namely Ali Raza. The petitioner when confronted with the said affidavit, has repudiated the same. She denies under oath that she had executed this document. She states that the minor was taken from her on the pretext of visiting the father and was not returned to her. I have examined the document, which purports to be executed in compliance of some decision of Jirga. The circumstances of handing over of the minor to his father namely Sajjad Ahmad (Respondent No. 1) are mired in controversy as the Respondent No. 1 is claiming that the minor was handed over to him in consequence of the agreement effected between him and the petitioner on the intervention of the Jirga whereas the petitioner is claiming that the minor was removed from her custody on the pretext of visiting the father. It is not disputed by both the parties that the child was born when already the parties were living separately from each other and it is also not disputed that divorce was effected between the parties in the year 2018.It is also not disputed that prior to 18.11.2020 the minor had been living with the petitioner. The child has also been questioned by this Court who stated that he had been living with his mother since his birth and had only recently been handed over to his father (Respondent No. 1). On Court query, the minor namely Ali Raza has stated that he wanted to live with his mother, the petitioner. Prima facie no bond of love and affection exists between the minor and his father as he had not lived with his father ever prior to his handing over to him only recently. Any agreement, though disputed by the petitioner, even if executed with regard to the handing over the custody of the minor, has no value in the eyes of law and cannot be relied upon. There can be no dispute that questions concerning the custody and guardianship of minors cannot be settled by a private compromise or even by arbitration. An agreement of this nature, therefore, cannot be enforced. If an agreement is entered into by a female which appears unconscionable on the face of it, there is a rebuttable presumption that the agreement was entered into by coercion and undue influence. No effective rebuttal is forthcoming to show as to why the petitioner would voluntarily part with her minor son. Hence the purported agreement to hand over the custody of the minor to the Respondent No. 1 has no value in the eyes of the law. Reliance is placed on the cases of “Mst. Shehnaz Bibi versus Muhammad Akram and others” (1995 PCrLJ 307), “Mst. Riffat Bibi versus Amanat Ali” (1997 MLD 1562), “Afshan Naureen versus Nadeem Abbas Shah” (1997 MLD 197) and “Mst. Tahera Begum versus Saleem Ahmed Siddiqui” (PLD 1970 Karachi 619). It would only be the learned Guardian Judge who would be in a position to determine the welfare of the child in proceedings if initiated before the same. At present this Court finds it proper and in the interest and for the welfare of the minor to hand over the custody of the minor Ali Raza to his mother, the petitioner, with whom he had lived since his birth and the bond of love and affection exists between the mother and the child and at present there does exist no reason to break the same. It is true that a Guardian Court is the final arbitrator to adjudicate upon the question of custody of a child but this does not mean that where a parent is holding custody of a minor lawfully and is deprived of such custody, such parent cannot seek remedy to regain the custody. In Arabic language, guardianship is termed as wilayat and custody as hidhanat. Custody means physical or material possession of the children, whereas its Arabic equivalent hidhanat literally means ‘training’ or ‘upbringing of the child’. According to Ibn Qayyam, (1292-1350CE/691 AH-751 AH,) who was a Sunni Islamic jurist and commentator of the Quran, there are two types of guardianships. In one, the father prevails over the mother and that is in matters of money and marriage. In the other, the mother prevails over the father and that is in matters of nourishing and upbringing. There exists a distinction between guardianship and custody. Under Sections 4(2), (S), 9(i) and 25 of the Guardians and Wards Act 1890, “guardianship” and “custody” are not held to be synonymous terms. It is observed that “guardian” as defined in S. 4(2) means a person providing de facto or de jure care of the person or property of a minor. Such a person may or may not have the custody of a minor. This Court, in the exercise of its jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 has to exercise parental jurisdiction and is not precluded in any circumstance, from giving due consideration to the welfare of the minor and to ensure that no harm or damage comes to him physically or emotionally by reason of the breakdown of the family tie between the parents. Reliance is placed on the case of “Mirjam Aberras Lehdeaho v. S.H.O., Police Station Chung, Lahore and others” (2018 SCMR 427). Reliance is also placed on the case of “Mst. Madiha Younus vs. Imran Ahmed” (2018 SCMR 1991).

3. In view of the above discussion, this petition is allowed and the custody of the minor namely Ali Raza is ordered to be handed over to the petitioner. It has been brought to the notice of the Court that Respondent No. 1 intends to file an application under Section 25 of the Guardian & Wards Act, 1890. It is, therefore, directed that if and when such an application is filed by the Respondent No. 1, the learned Guardian Judge shall decide the same strictly in accordance with the law and expeditiously, preferably within a period of two months of the filing of the same. It is also directed that the petitioner shall produce the minor before the learned Guardian Judge if, as and when directed by the said Court so as to allow Sajjad Ahmad, the father of the minor, to meet with the minor. However, Sajjad Ahmad shall not be allowed to take the minor out of the premises of the Court of learned Guardian Judge. It is also made clear that any such petition filed before the Court of the learned Judge Guardian Court shall be decided on its own

merits, without being influenced in any manner by any observation made in this order.

(M.M.R.) Petition Allowed

PLJ 2021 Lahore 30 (DB)

Present: Ch. Mushtaq Ahmad and Farooq Haider, JJ.

Ch. MUHAMMAD ANWAR--Petitioner

versus

JUDGE ACCOUNTABILITY COURT and others--Respondents

W.P. No. 246 of 2021, decided on 6.1.2021.

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

----Ss. 540 & 561-A--Constitution of Pakistan, 1973, Art. 199--Application for recalling of order--Dismissed--Recalling of witnesses--Right to challenge--Veracity of evidence--Filing of lacuna--Challenge to--It has been noticed that evidence, which has been allowed to be brought on record of case through orders (mentioned above), is otherwise essential for just decision of case and accused party certainly has right to challenge veracity of said piece of evidence by way of cross-examination--Contention of counsel for petitioner that right/benefit accrued in favour of accused has been taken away through impugned orders, is concerned, same does not hold water for prime reason that such approach may be adopted in civil lis but not in criminal case where approach of Court must be inquisitorial in nature--When trial Court has clearly observed that evidence “summoned through impugned order” is necessary for just decision of case, then objection regarding curing lapses/omissions left by any party or filling lacuna left by any party becomes irrelevant and it becomes mandatory for Court to summon and examine such evidence--It has been found that trial Court while observing that “evidence” is not newly created rather already available, otherwise relevant and is necessary for just decision of case, has rightly allowed same to come on record through impugned orders particularly when accused party has been allowed to cross-examine same; therefore, both impugned orders passed by learned Judge, Accountability Court No. IV, Lahore, are perfectly valid, well-reasoned and quite in accordance with “law, peculiar facts and circumstances” of case; hence, need no interference--Petition was dismissed.

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

2001 P.Cr.R. 458, PLD 1985 SC 95, 2001 SCMR 308 and PLD 2020 SC 617 ref.

Sardar Muhammad Sadiq Tahir, Advocate for Petitioner.

Syed Faisal Raza Bukhari, Special Prosecutor for NAB, on Court’s call.

Date of hearing: 6.1.2021.

Order

Through instant petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 561-A Cr.P.C., Ch. Muhammad Anwar (petitioner) has challenged the vires of order dated 08.12.2020 passed by learned Judge, Accountability Court No. IV, Lahore, whereby application for recalling of order dated 26.11.2019 passed by said learned Court, has been dismissed; relevant portion of said order dated 26.11.2019 is hereby reproduced:

“An application U/S. 540 Cr.P.C. was filed on the last date for recalling of two PWs namely PW-7 Sheikh Muhammad Aslam and PW-9 Muhammad Umar Asif Jah on the ground that two different numbers were assigned to the two references i.e. the original and supplementary reference and that inadvertently the Cheque No. 2198624 dated 27-06-2006 pertaining to Allied Bank Awan Town, Multan Road Lahore and the minutes of the general body meeting of the society WAPDA Retired officers employees Housing Scheme Mannoabad Muridky have to be placed on record as the same were already available in the reference and due to inadvertence same could not be exhibited and that nothing new for filing up of any lacuna is being sought. The learned Special Prosecutor further want to re-summon the PW-23 for complete examination in chief.

I have perused the record. The said Cheque No. 2198624 is available on page-179 and was produced by PW-9 Muhammad Umar Asif Jah and minutes of meeting are available at page-183 to 223 PW-7 Sheikh Muhammad Aslam had produced the same to the I.O. and available on record. As the compilation of the reference is huge and the confusion in the allotment of two different numbers while registration of the reference gave arise to some confusion therefore, when the documents are available on record it cannot be assumed that it was some lacuna on the part of the prosecution nor a new evidence is being created by the prosecution. Therefore, the said documents are relevant and certainly would be essential for just decision of the case. Therefore, the said PWs be summoned accordingly for 18.12.2019.”

Similarly, relevant portions of impugned order dated 08.12.2020 are also reproduced for ready reference:

“Briefly stated the facts giving rise to the disposal of instant application are that reference Bearing No. 29/2010 against Ch. Muhammad Anwar and Others is pending in this Court and examination-in-chief of PW-7 SHEIKH Muhammad Aslam and PW-9 Muhammad Umer Asif Jah were recorded on 05.07.2013 and 11.01.2014 and cross-examination on these PWs were completed by the learned defence counsel on 07.10.2013 and 19.03.2014 respectively. After the completion of evidence of PW-7, learned Special Prosecutor preferred an application on 29.08.2013 under Section 540 Cr.P.C. for recalling and re-summoning of the witness PW-7 Sheikh Muhammad Aslam. Thereafter, then learned Special Prosecutor again filed the same application under Section 540 Cr.P.C. on 11.10.2018 for recalling and re-summoning of the said prosecution witnesses. On 19.09.2019 learned Special Prosecutor withdrew the application filed by him on 11.10.2018 with the contention that he wanted to file afresh application with the permission of Court which was dismissed as withdrawn accordingly vide order dated 19.09.2019. On 12.11.2019, learned Special Prosecutor filed a third application under Section 540 Cr.P.C. for recalling/re-summoning the aforesaid PWs which was accepted by my learned predecessor namely Ch. Ameer Muhammad Khan vide impugned order.”

“I have heard the arguments of both the parties and gone through the record with the able assistance of learned counsels and also perused the law applicable on the subject. The instant application has been filed after more than one year of the passing of impugned order especially when examination-in-chief of both the PWs have been recorded by the Court on 05.10.2020 and cross-examination on them on behalf of accused Dilawar Hussain by his counsel Mr. Adnan Shuja Butt Advocate has also been completed.

Perusal of record further reveals that learned Special Prosecutor withdrew the previous application on 19.09.2019 with the statement which is being reproduced alongwith order sheet of even date recorded by my learned predecessor Ch. Ameer Muhammad Khan as follows:

“An application under Section 540 Cr.P.C. was filed on 11.10.2018. Learned Special Prosecutor covets to withdraw this application, for filling afresh application. Let his statement be recorded.

STATEMENT OF HAFIZ ASAD ULLAH AWAN, LEARNED SPECIAL PROSECUTOR FOR THE STATE.

I withdraw the application under Section 540 Cr.P.C. dismissed as withdrawn.”

In the light of said statement, my learned predecessor dismissed the application as withdrawn vide order dated 19.09.2019. Thereafter on 12.11.2019, in pursuance of the same learned Special Prosecutor filed an application in hand under Section 540 Cr.P.C. for recalling/re-summoning the PW-7 and PW-9 and my learned predecessor Ch. Ameer Muhammad Khan accepted the same in presence of the accused persons and file was adjourned to 26.11.2019 and on the same day accepted the application vide impugned order dated 26.11.2019 in presence of the accused persons and they did not raise any objection which is evident from the order sheet. Consequently, the Court re-summoned the PW-7 and PW-9 and recorded their evidence on 05.10.2020 and cross-examination was completed by Mr. Adnan Shuja Butt Advocate learned counsel for accused Dilawar Hussain on both PWs on 13.11.2020. When Court asked the petitioner/accused Ch. Muhammad Anwar to produce his counsel for cross-examination on the PWs, he sought some adjournments on one or the other pretext and thereafter opted to file the instant application just to protract the trial which has been filed about one year after the passing of the impugned order.

So far as objection of learned defence counsel that learned Special Prosecutor filed fresh application under discussion without seeking prior permission of the Court, in this regard, it is observed that there is no any law provided in NAO, 1999 or in the Code of Criminal Procedure, 1898 which bars, learned Special Prosecutor to file another application under Section 540 Cr.P.C. withdrawn without decision. Even, otherwise, Section 540 Cr.P.C. has fully empowered the Court at its own even without any application of either party to re-summon or re-call any PW or person already examined at any stage of the case, if evidence of such person or PW appears to it essential to the just decision of the case and the same situation is prevailed in the case in hand. Learned Special Prosecutor submits that application for recalling/re-summoning of PWs was not filed for creation or introducing a new evidence rather some of the documents were to be exhibited in evidence which were already part of the file and could not be exhibited in previous examination-in-chief inadvertently. In the light of above discussion, observation an analysis the Court does not find anything on file which suggests to recall the impugned order passed my learned predecessor. Hence, the instant application having no force is hereby dismissed.”

1. Learned counsel for the petitioner submits that impugned order is against the facts of the case and relevant law on the subject; further adds that through impugned order “lacuna” left by the prosecution is going to be filled in and “right” accrued in favour of the petitioner is being snatched; finally prays for setting-aside both the orders mentioned above.

2. Learned Special Prosecutor for NAB has supported both the orders mentioned above.

3. Arguments heard. Available record perused.

5. It is well settled principle of law that criminal justice system is not adversarial rather inquisitorial and Court has to reach at just decision of the case; any piece of evidence which is essential for just decision of the case, has to be brought on record irrespective of the fact that either it favours one party or goes against other; any delay for filing any application for calling/recalling of witnesses or bringing any piece of evidence on record, is immaterial; similarly, filling lacuna in the case is also immaterial if said piece of evidence is otherwise necessary for securing ends of justice i.e. essential for just decision of the case. It has been noticed that evidence, which has been allowed to be brought on record of the case through orders (mentioned above), is otherwise essential for just decision of the case and accused party certainly has right to challenge the veracity of said piece of evidence by way of cross-examination.

As far as contention of learned counsel for the petitioner that right/benefit accrued in favour of accused has been taken away through impugned orders, is concerned, same does not hold the water for the prime reason that such approach may be adopted in civil lis but not in criminal case where approach of the Court must be inquisitorial in nature; in this regard, case of “Abdul Latif Aasi versus The State” (2001 P.Cr.R 548) can be advantageously referred and its relevant Paragraph No. 7 is hereby reproduced:-

“7. The main plank of the petitioner’s arguments before me has been that in our adversarial system of justice there was no scope for an inquisitorial approach adopted by learned Trial Court through the impugned order passed by it. However, the learned counsel for the petitioner have failed to point out any statutory sanction for observing that our system of justice is adversarial and not inquisitorial. If one looks at the history of our judicial system one may notice that this concept has gradually developed therein as a rule of prudence and practice mainly as regards civil litigation wherein the parties to a lis are required to lay their respective claims before the Trial Court and then substantiate, the same through evidence to be led by them. There are indications available in the Code of Civil Procedure which support the perception that civil litigation in our system is, by and large, adversarial in nature. But even there the inherent and general powers of the Court, and even some specific powers, sometimes cut across that concept. A general acceptance of that concept in the civil litigation is, even otherwise, understandable. In a civil lis, more often than not, it is the parties to the lis alone who are interested in its outcome and effect. This cannot be said to be true for a criminal case wherein an offence committed by an individual is considered to be an offence not only against his victim but also against the whole society and the State. Thus, in a criminal case an intentional or an un-intentional lapse on the part of the complainant, the Investigating Officer or the prosecuting counsel is not to be allowed to stand in the way of a Trial Court to rectify that lapse by calling in evidence on its own if such evidence can have a bearing on the determination of guilt or innocence of the accused person. Such a power has to be conceded to a Criminal Court in the larger interest of the community at large. Looked at in this context the stage of a trial appears to be irrelevant to an exercise of such a power of the Court and the only factor relevant to the exercise of such a power cannot be other than the relevance of the evidence called.”

It goes without saying that Ch.1-E of the Volume III of Lahore High Court Rules and Orders deals with recording of evidence in criminal cases and relevant portion of its Rule 2 clearly reflects as under:

“2. Duty of Court to elucidate facts.--.......................

............................................................................

.............. a Judge in a Criminal trial is not merely a disinterested auditor of the contest between the prosecution and the defence, but it is his duty to elucidate points left in obscurity by either side, intentionally or unintentionally, to come to a clear understanding of the actual events that occurred and to remove obscurities as far as possible. The wide powers given to the Court by [Article 161 of the Qanun-e-Shahadat, 1984] \[…] should be judiciously utilized for this purpose when necessary”.

(emphasis added)

Similarly, Article 161 of the Qanun-e-Shahadat Order, 1984 is also relevant and concerned portion of the same is hereby reproduced:

“161. Judge’s power to put question or order production.--The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant, and may order the production of any document or thing and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question.”

As far as another contention raised by learned counsel for the petitioner that impugned order has filled lacuna left by the prosecution is concerned, same is also of no legal worth because when learned trial Court has clearly observed that evidence “summoned through impugned order” is necessary for just decision of the case, then objection regarding curing lapses/omissions left by any party or filling lacuna left by any party becomes irrelevant and it becomes mandatory for the Court to summon and examine such evidence; in this regard, guidance has been sought from the case of “Muhammad Azam versus Muhammad Iqbal and others” (PLD 1985 Supreme Court 95) and relevant portions from its Pages No. 118, 121 and 122 are hereby reproduced:

(Page 118) “The duty nevertheless lay squarely on the trial Court to summon the entire available evidence on this controversy and record/admit the same by virtue of power under Section 540, Cr.P.C. It reads as follows:

“540. Power to summon material witness or examine person present. Any Court may, at any stage of any inquiry, trial of other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.”

This provision is divided into two parts: one where it is only discretionary for the Court to summon a Court witness suo motu or on application, and the second part where it is mandatory for the Court to do so. The main condition to be satisfied with regard to the second part is that the evidence to be summoned under this part should appear to the Court to be essential to the just decision of the case.”

(Page 121) “It needs to be observed that for purpose of acting under Section 540, Cr.P.C. (whether the first or second part), it is permissible to look into the material not formally admitted in evidence, whether it is available in the records of the judicial file or in the police file or elsewhere. The perusal of both these records would show that if evidence, in connection with the items already noticed, would have been properly entertained the reasoning and decision of the learned two Courts might have been different.

Sometimes apprehension is expressed that any action by the trial Court under Section 540, Criminal Procedure Code would amount to filing the gaps and omissions in the version or evidence of one or the other party. It may straightaway be observed that in so far as the second part of Section 540 goes, it does not admit any such qualification. Instead, even if the action thereunder is of the type mentioned, the Court shall act in accordance with the dictates of the law. In fact the Court has no discretion in this behalf. It is obligatory on it to admit evidence thereunder if it is essential for the just decision of the case.”

(emphasis added)

(Page 122) “In yet another case Rashid Ahmad v. The State (1), this Court made it more clear that “a criminal Court is fully within its rights in receiving fresh evidence even after both the sides have closed their evidence and the case, is adjourned for judgment, for, till then the case is still pending. The only question therefore, is as to whether in the interest of fairness further opportunity should have been given to the accused”; and, it was held that “there is no bar to the taking of additional evidence in the interest of justice, at any stage of inquiry or trial as provided by the provisions of Section 540, Cr.P.C.” In these cases if the question regarding so-called filling of the gaps would have been raised more squarely, the answer in view of what has been noticed above would have been the same as already rendered; namely, that if it is essential for the just decision of the case, then the same is the command of the law under the second part of Section 540, Cr.P.C. It would not be possible to canvass that when the action under the said provision amounted to so-called filling of a gap, the Court would for this reason, avoid its duty to admit the additional evidence. Two more decisions by this Court as illustrative of the practice, may also be noted. There are: Bashir Ahmad v. The State and another (2), and Yasin alias Cheema and another vs. The State (3).”

(emphasis added)

In this regard, further guidance has been sought from the case of “The State vs. Muhammad Yaqoob and others” (2001 SCMR 308) and relevant portions from its Page No. 325 are hereby reproduced:

“It is thus manifest that calling of additional evidence is not always conditioned on the defence or prosecution making application for this purpose but it is the duty of the Court to do complete justice between the parties and the carelessness or ignorance of one party or the other or the delay that may result in the conclusion of the case should not be a hindrance in achieving that object.”

(emphasis added)

“It is correct that every criminal case has its own facts and, therefore, no hard and fast rule or criteria for general application can be laid down in this respect but if on the facts of a particular case it appears essential to the Court that additional evidence is necessary for just decision of the case then under second part of Section 540, Cr.P.C. it is obligatory on the Court to examine such a witness ignoring technical/formal objection in this respect as to do justice and to avoid miscarriage of justice”.

(emphasis added)

6. In view of what has been discussed above, it has been found that learned trial Court while observing that “evidence” is not newly created rather already available, otherwise relevant and is necessary for just decision of the case, has rightly allowed the same to come on record through impugned orders particularly when accused party has been allowed to cross-examine the same; therefore, both the impugned orders dated 08.12.2020 and dated 26.11.2019 passed by learned Judge, Accountability Court No. IV, Lahore, are perfectly valid, well-reasoned and quite in accordance with “law, peculiar facts and circumstances” of the case; hence, need no interference. It goes without saying that august Supreme Court of Pakistan in the case of “Farooq Hussain and others versus Sheikh Aftab Ahmad and others” (PLD 2020 Supreme Court 617) has clearly observed that if the Court having examined the decision challenged before it, is satisfied with its reasoning & conclusions and is of the view that it does not call for any interference, then Court can simply endorse the impugned decision and adopt the reasoning of the Court below; relevant portion of the said order is hereby reproduced:

“It is emphasized that if this Court, having examined the judgment challenged before it, is satisfied with its reasoning and conclusions and is of the view that it does not call for any interference, this Court can simply endorse the impugned judgment and adopt the reasoning of the Court below. In such a case, re-tracing the same path travelled by the Court below

appearsto be an unnecessary exercise and a waste of public time-time which can be allocated to other cases where the decisions of the Courts below have been overturned or modified. Finding no reversible error in the judgment, a concise, simple order can suffice. On the other hand, if the Court is to reverse or modify the judgment of the Court below, the reasons for the reversal or modification must be set forth.

1. This approach adopted by the Court, is by no means a short-cut which is offensive to fair trial under Article 10-A of the Constitution nor does it in any manner undermine due process and fair-play. It is simply a creative way forward that spares the Court from writing opinions where a mere adoption of a well-reasoned judgement of the Court below through a short order serves the purpose adequately.”

2. For the foregoing reasons, instant petition is without merits and is hereby dismissed in limine.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 40

Present: Muzamil Akhtar Shabir, J.

JABRAN MUSTAFA--Petitioner

versus

JUDGE FAMILY COURT etc.--Respondents

W.P. No. 69574 of 2020, decided on 1.1.2021.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Attorney of judgment debtor--Execution proceedings--Non-service of warrants of arrest of judgment debtor--Issuance of arrest warrants of petitioner--Application for cancellation of warrants--Dismissed--Issuance of non-bailable warrants--Maintainability--Challenge to--It is observed that it is not a case wherein warrants of arrest have been simplicitor issued against petitioner for this Court to treat same as an interlocutory order to look into its legality rather in present case vide impugned order executing Court while dismissing petitioner’s application for cancellation of warrants of arrest, issued against him, has refused to recall its earlier order by application of its mind to facts of matter pending before it. [P. 41] A

Family Courts Act, 1964--

----S. 14--Objection petition--Final decision--Appealable order--A “decision given” on afore referred application/objection petition of petitioner against execution of decree, hence, amounts to a final decision, therefore, said order is appealable before appellate Court in terms of Section 14 of Family Courts Act, 1964. [P. 41] B

Mirza Kazim Ali Baig, Advocate for Petitioner.

Mr. Adeel Ahmad Kamran, Assistant Attorney General and Sardar Qasim Hassan Khan, AAG.

M/s. Nasrullah Khan Babar, Ch. Muhammad Shahid Iqbal, Ch. Muhammad Naseer and Faisal Anwar Minhas,Advocates. (Amici curiae).

Date of hearing: 1.1.2021.

Order

Through this constitutional petition, the petitioner, who is the brother and was attorney of the judgment debtor (Ghulam Murtaza) in the family suit filed by Respondent Nos. 2 to 5/decree holders, has called in question orders dated 21.10.2020 and 09.12.2020 respectively, whereby due to non-service of warrants of arrest of the judgment debtor, at the request of the decree holders/respondents, warrants of arrest of the present petitioner in execution proceedings of decree passed by the Judge Family Court have been issued and the application of the petitioner for cancellation of warrants of arrest against him has been dismissed and he has been summoned through non-bailable warrants to appear in said Court on 04.01.2021.

1. It is contended by the learned counsel for the petitioner that as the petitioner was neither a judgment debtor nor stood as surety or guarantor for him, therefore, issuance of warrants of his arrest, initiating recovery proceedings against him were not justified.

3. It is observed that it is not a case wherein warrants of arrest have been simplicitor issued against the petitioner for this Court to treat the same as an interlocutory order to look into its legality rather in the present case vide impugned order dated 09.12.2020 the learned executing Court while dismissing the petitioner’s application for cancellation of warrants of arrest, issued against him, has refused to recall its earlier order dated 21.10.2020 by application of its mind to the facts of the matter pending before it and placing reliance on judgment of the Supreme Court reported as Muhammad Pervez vs. Mst. Nabila Yasmeen and 2 others (2004 SCMR 1352), which in the opinion of this Court is a “decision given” on the afore referred application/objection petition of the petitioner against execution of decree, hence, amounts to a final decision, therefore, the said order is appealable before the appellate Court in terms of Section 14 of the

Family Courts Act, 1964. Reliance in this behalf may also be placed on the judgment reported as Rahim Bukhsh vs. Mst. Shehzadi and others (2018 CLC 1789), wherein it has been held that dismissal of an objection petition is an appealable order.

1. As regards the question whether the facts of the petitioner’s case are distinguishable from the facts in the afore referred reported case (2004 SCMR 1352) is concerned, the same can be taken into consideration by the appellate Court, in case any appeal is filed before it.

2. For what has been discussed above, in view of availability of alternate remedy, this petition is dismissed as premature and not maintainable. However, the petitioner, if advised, is at liberty to approach the appropriate forum for redress of his grievance.

(M.M.R.) Petition dismissed

PLJ 2021 Lahore 42

Present: Muhammad Ameer Bhatti, J.

SAHIBZADA SYED IMRAN HAIDER--Petitioner

versus

CHAIRMAN EXECUTIVE COMMITTEE, PUNJAB BAR COUNCIL and others--Respondents

W.P. No. 69001 of 2020, decided on 29.12.2020.

Legal Practitioners and Bar Council Rules, 1973--

----R. 175.I--Constitution of Pakistan, 1973, Art. 199--Constitution of election board--Challenge to--I do not find any illegality or irregularity in the order passed by the Chairman Executive Committee, Punjab Bar Council--Petition was dismissed.

[P. 43] A

Nemo for Petitioner.

Mr. Saqib Haroon Chishti,Assistant Advocate General.

Syed Farhad Ali Shah, Chairman Executive Committee, Punjab Bar Council.

Mr. Ashraf Rahi,Secretary, Punjab Bar Council.

Order

In pursuance of verbal order of this Court passed in the earlier part of the day, Syed Farhad Ali Shah, Chairman Executive Committee, Punjab Bar Council has entered appearance and submits

that the Board constituted by him reflecting from order dated 22.12.2020 is in accordance with Rule 175-I of Pakistan Legal Practitioners and Bar Councils Rules, 1976 and there is no illegality in the Constitution of that Board as alleged by the learned counsel for the petitioner, who is absent at this moment.

2. In view of the above, I do not find any illegality or irregularity in the order passed by the Chairman Executive Committee, Punjab Bar Council, hence this petition has no force and is dismissed.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 43 [Bahawalpur Bench, Bahawalpur]

Present:Tariq Saleem Sheikh, J.

NRSP Microfinance Bank Limited--Petitioner

versus

ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE and 3 others--Respondents

W.P. No. 8502 of 2019, decided on 6.2.2020.

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

----S. 22-A--Pakistan Penal Code, (XLV of 1860), Ss. 154 & 489-F--Financial Institution Ordinance, (XLIV of 2001), S. 20(4)--Extension of loan--Default of payment--Issuance of cheque which was dishonoured--Burden of proof--Question of--Whether financial institution could get FIR registered for dishonor of cheque by customer for repayment--Determination--Fulfillment of obligation--Direction to--Whoever dishonestly issues a cheque towards re-payment of a finance or fulfilment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to one year, or with fine or with both, unless he can establish, for which burden of proof shall rest on him, that he had made arrangements with his bank to ensure that cheque would be honoured and that bank was at fault in not honouring cheque--It becomes crystal clear that remedy before banking Court would be available to exclusion of all other forums only when Financial Institutions (Recovery of Finances) Ordinance, 2001 would attract, whereas, in terms of Section 3(2) of Microfinance Institutions Ordinance, 2001, financial institutions shall not apply to microfinance institutions--It is by now well settled that if officer-in-charge of a police station receives a complaint or information about commission of a cognizable offence, he is obligated to register FIR forthwith--Question as to which party’s version is correct can only be determined during investigation--Petitioner’s applications disclose commission of a cognizable offence so this Court could have straightaway directed registration of FIR--A bare reading of above section shows that foundational elements to constitute offence are: (i) cheque was duly issued, (ii) it was issued with dishonest intent, (iii) it was issued towards repayment of a loan or fulfillment of an obligation, and (iv) it was dishonoured on presentation--Dishonest intention on part of drawer of a bad cheque is one of foundational elements to constitute offence, prosecution is must prove it to succeed--However, this would be during investigation and trial of case and not before it, i.e. not at time of registration of FIR--Petitioner had advanced loan to Respondents as “Qarz-e- Hasna”, JOP took it as one of grounds to dismiss Petitioner’s applications--Qarz-e-Hasna is a form of interest- free loan that is extended by a lender to a borrower on basis of benevolence (Ihsan)--It is a gratuitous loan extended to people in need for a specified period of time (free from interest/mark-up or service charges) and is to be returned when convenient by loanee--When loanee of Qarz-e-Hasna voluntarily and knowingly issues a cheque for a specific date and same is dishonoured, it constitutes a cognizable offence in terms of Section 489-F PPC--SHO concerned is directed to register FIR as mandated by Section 154 Cr.P.C. if Petitioner approaches him with a copy of notice under Section 30 of Negotiable Instrument Act, 1881, and take further steps in accordance with law to take matter to its logical end. [Pp. 48, 49, 50, 51 & 55] A, B, C, D, E, H, I & J

2018 CLD 1196, 2019 CLD 85, PLD 2007 SC 539 and 2016 YLR (Note) 93.

Word & Phrases--

----“Obligation” as “(a) state of being forced to do something because it is your duty, or because of a law etc.; or (b) something which you must do because you have promised, because of a law etc.”--Similarly LEXICO, on-line dictionary, defines said term as “an act or course of action to which a person is morally or legally bound; a duty or commitment. [Pp. 51 & 52] F & G

Mr. Naveed Khalil Chaudhry, Advocate, for Petitioner.

Malik Shahnawaz Kalyar, AAG. for Respondent.

Malik Javaid Aslam Naich, Advocate, for Respondent No. 4.

Date of hearing: 6.2.2020.

Order

This single order shall decide the instant petition and those enlisted in Schedules A & B as they involve identical questions of law and facts.

1. In the first set of cases, which includes the instant petition and those mentioned in Schedule-A, the NRSP Microfinance Bank Limited (“NRSP”) filed applications under Section 22-A, Cr.P.C. before the Ex-Officio Justice of Peace (JOP) stating that it had extended loan to its customer named therein (Respondent No. 4 in every case) but he defaulted. When the NRSP approached him for liquidation of his liability he gave it a cheque which was dishonoured. The NRSP alleged that the borrower had dishonestly given it a bad cheque and had thus committed an offence under Section 489-F, PPC which was cognizable. It prayed that a direction be issued to the SHO concerned for registration of FIR against him. The JOP dismissed the said applications and, relying on Abdul Rehman v. Justice of Peace/Learned Additional Sessions Judge and 2 others (2019 CLD 85), observed that the NRSP should institute a suit under Order XXXVII, CPC for recovery of its dues. These orders have been impugned in these petitions.

2. In the second set of cases (Schedule-B) the JOP has accepted the NRSP’s applications containing the same facts and issued directions for registration of FIRs. As such, in these petitions borrowers have assailed the JOP’s orders before this Court. NRSP shall hereinafter be referred to as the “Petitioner” and the customers/borrowers as the “Respondents”.

3. The learned counsel for the Petitioner, Mr. Naveed Khalil Chaudhary, Advocate, contended that the Petitioner was licensed under Section 6 of the Microfinance Institutions Ordinance, 2001 (“Microfinance Ordinance”), to render assistance to microenterprises and provide microfinance services in a sustainable manner to the poor with the object to alleviate poverty. The Respondents obtained loan from it and gave cheques for the discharge of their financial obligations which were dishonoured. The Petitioner was entitled to seek his remedies against them under civil and criminal law. The latter included registration of FIR under Section 489-F, PPC. The learned counsel placed reliance on Muhammad Mumtaz Akhtar v. Additional Sessions Judge etc. (2019 LHC 1347).

4. Malik Javaid Aslam Naich, Ch. Sohail Akhtar Alkara and Syed Zeeshan Haider, Advocates, were lead counsel for the Respondents. The other learned counsel adopted their arguments. Mr. Alkara contended that, firstly, the applications under Section 22-A Cr.P.C. before the JOP were not maintainable and liable to be dismissed as such. If the Petitioner wanted to initiate criminal proceedings against any defaulting borrower for dishonour of cheque it could only file a complaint under Section 20 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the “FIO”). FIR under Section 489-F, PPC was not competent. Secondly, the Respondents had handed over the cheques in question to the Petitioner as security at the time when the loan was sanctioned: they were not meant to be encashed. The Petitioner had concocted a false story that the Respondents issued them after the default to liquidate their accrued liability. Mr. Alkara relied on Syed Mushahid Shah and others v. Federal Investigating Agency and others (2017 SCMR 1218) and Muhammad Asif Nawaz v. Learned Additional Sessions Judge/Justice of Peace, Multan and 2 others (PLJ 2013 Lah. 606) in support of his contentions.

5. Syed Zeeshan Haider, Advocate, contended that mere dishonour of cheque was not sufficient to constitute an offence under Section 489-F, PPC. The prosecution was obliged to show that it was issued “dishonestly”. In the present cases the Petitioner had not brought any material on record to this effect so FIR could not be ordered to be registered. He placed reliance on Mian Allah Ditta v. The State and others (2013 SCMR 51).

6. The learned Assistant Advocate General supported the Petitioner’s viewpoint. He argued that Section 3 of the Microfinance Ordinance specifically barred application of the laws relating to banking companies or financial institutions to microfinance institutions licensed thereunder. As such, the remedy under Section 20 of the FIO was not available to the Petitioner and it could have recourse to Section 489-F, PPC under the general law.

7. Arguments heard. Record perused.

8. The Pakistan Penal Code, 1860 (PPC), seeks to provide a general penal code for the country1[1] and has effect throughout it.[2] Section 2 ordains that every person shall be liable to punishment thereunder for every act or omission contrary to its provisions. Section 5 adds that it does not repeal, vary, suspend or affect any law relating to mutiny and desertion of officers, soldiers, sailors or airmen in the service of the State or of any special or local law. Similarly, the Code of Criminal Procedure, 1898 (Cr.P.C.), sets out the general law relating to procedure for inquiry, investigation and trial of criminal cases and other ancillary matters. Section 5 thereof provides that it shall apply to all offences under the PPC but for offences under other laws its provisions shall be applied subject to any enactment for the time being in force regulating the manner and place of investigation, inquiring into, trying or otherwise dealing with such offence.

9. The Hon’ble Supreme Court of Pakistan traced the history of banking laws in Pakistan in Syed Mushahid Shah and others v. Federal Investigating Agency and others (2017 SCMR 1218). It observed that initially criminal offences were mostly dealt with under the PPC and tried by the Courts of ordinary criminal jurisdiction under the Cr.P.C. Subsequently, the Banking Companies (Recovery of Loans) Ordinance, 1978, was promulgated to provide for a summary procedure for recovery of loans of banking companies and connected matters. This law made banking disputes subject to civil and criminal jurisdiction of the Special Courts constituted thereunder. It was re-enacted and replaced by the Banking Companies (Recovery of Loans) Ordinance, 1979. Section 9 of this Ordinance criminalized certain acts and omissions. The Special Courts established under this Ordinance besides exercising civil jurisdiction were empowered to try those offences. On 31.12.1984, the Banking Tribunals Ordinance, 1984, was promulgated to provide a machinery for the recovery of finance extended by the banking companies under a system of a financing which was not based on interest. It closely followed the Ordinance of 1979. However, both these laws were repealed and replaced by the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, 1997, and then the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, took over. The latter essentially amalgamated the Ordinances of 1979 and 1984 creating one forum for resolution of banking disputes and trial of certain specified offences.

10. A few months before the enactment of the Banking Tribunals Ordinance, 1984, the President of Pakistan promulgated the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (“ORBO”), to provide for speedy trial of certain offences committed in respect of banks and for matters connected therewith or incidental thereto. The ORBO created Special Courts which were given exclusive jurisdiction to try various offences made punishable under the PPC if they were committed in respect of or in connection with the business of the banks increasing punishment for some of them. Thus, the ORBO also wrested some of the jurisdiction of the ordinary criminal Courts.

11. The final link in the chain is the Financial Institutions (Recovery of Finances) Ordinance, 2001, which is being referred to herein as the FIO. It repealed the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, and established Banking Courts which deal with civil and criminal disputes between financial institutions and customers in respect of finances availed by the latter. Section 20 of the FIO enlists the offences triable by the Banking Courts. Importantly, the Banking Court cannot take cognizance of any of the said offences except on the complaint in writing by a person authorized by the financial institution.[3] Further, all offences except for the offences of wilful default, are bailable, non-cognizable and compoundable.[4]

12. The above resume shows that there are two special laws that deal with offences in banking matters, viz, ORBO and FIO. In Mushahid Shah’s case, supra, the question before the Hon’ble Supreme Court was as to which law would take precedence over the other in the event of conflict and whether the ordinary criminal Courts and the Federal Investigation Agency established under the Federal Investigation Agency Act, 1974, had jurisdiction to inquire into, investigate or try the offences falling within the ambit of the said laws. The apex Court authoritatively ruled:

“…we find that the provisions of the Ordinance, 2001 are to have an overriding effect on anything inconsistent contained in any other law for the time being in force, including the ORBO, the Code of Criminal Procedure (read with the PPC) and the Act, 1974 (read with the Ordinance, 1962). In essence, whenever an offence is committed by a customer of a financial institution within the contemplation of the Ordinance, 2001, it could only be tried by the Banking Courts constituted thereunder and no other forum. The Special Courts under the ORBO, the ordinary criminal Courts under the Code and the Agency under the Act, 1974 read with the Ordinance, 1962 would have no jurisdiction in the matter.”

14. Section 20(4) of the FIO stipulates that whoever dishonestly issues a cheque towards re-payment of a finance or fulfilment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to one year, or with fine or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque. Mr. Alkara’s argument is that even if the contents of the Petitioner’s applications under Section 22-A, Cr.P.C. are accepted, it would constitute an offence under Section 20(4), ibid, and only the Banking Court has the exclusive jurisdiction to take cognizance on a complaint. The said contention is premised on the Hon’ble Supreme Court’s judgment in Mushahid Shah’s case. I am afraid the said contention deserves a short shrift because that judgment has no relevance for the cases in hand. Admittedly, the Petitioner is a microfinance bank and Section 3 of the Microfinance Ordinance expressly bars the application of the laws pertaining to banking companies or financial institutions to it. For ease of reference Section 3 is reproduced hereunder:

3. Application of other laws.--(1) The provisions of this Ordinance shall be in addition to, and, save as hereinafter provided, not in derogation of, any other law for the time being in force.

(2) Save as otherwise provided in this Ordinance, the Banking Companies Ordinance and any other law for the time being in force relating to banking companies or financial institutions shall not apply to microfinance institutions licensed under this Ordinance and microfinance institution shall not be deemed to be a banking company for the purposes of the said Ordinance, the State Bank of Pakistan Act, 1956 (XXXIII of 1956), or any other law for the time being in force relating to banking companies.

(3) Save as expressly provided in this Ordinance, the provisions of this Ordinance shall have effect notwithstanding anything contained in any rules, regulations, memoranda or articles of association of a microfinance institution or in any resolution passed by such institution in its general meeting or by its Board of Directors, whether the same be applied, executed or passed before or after the commencement of this Ordinance and any provision contained in any rules, regulations, memoranda, articles or resolutions aforesaid shall, to the extent of its inconsistency become or be void and of no legal effect.

1. Ample case-law has developed on the meaning and import of Section 3, ibid. In Syed Itrat Hussain Rizvi v. Messrs Tameer Micro Finance Bank Limited through Attorney and another (2018 CLD 116), the Sindh High Court held that summary suit under Order XXXVII of CPC was competent and the jurisdiction of the Banking Court under the FIO could not be invoked. The Court ruled:

“9. Besides above, a bare perusal of Section 3(2) of Microfinance Institution Ordinance, 2001, as reproduced in para No. 2 above, clearly reflects that the Banking Companies Ordinance and any law for the time being in force relating to banking companies or financial institutions shall not apply to microfinance institutions licensed under the Ordinance and microfinance institutions shall not be deemed to be a banking company for the purposes of the said Ordinance, the State Bank of Pakistan Act, 1956 (XXXIII of 1956) or any other law for the time being in force relating to banking companies.”

“10. From the above legal position, it appears that the summary suit filed by Respondent No. 1/plaintiff against the Appellant/defendant before Respondent No. 2 [District Judge, Karachi (Central)] was competent and was rightly decided by the said Court.”

The above view was endorsed by this Court in Muhammad Tauseef and 4 others v. The State Bank of Pakistan and 30 others (2018 CLD 1196).

1. The question of criminal jurisdiction of Banking Court viz-a-viz microfinance bank/institution came up for consideration before this Court in Muhammad Mumtaz Akhtar’s case, supra. It was held:

“On careful perusal of the judgment of the apex Court it becomes crystal clear that remedy before the banking Court would be available to the exclusion of all other forums only when the Financial Institutions (Recovery of Finances) Ordinance, 2001 would attract, whereas, in terms of Section 3(2) of the Microfinance Institutions Ordinance, 2001, financial institutions shall not apply to microfinance institutions.”

1. The JOP has relied on Abdul Rehman v. Justice of Peace/Learned Additional Sessions Judge and 2 others (2019 CLD 85) to dismiss the Petitioner’s applications under Section 22-A, Cr.P.C. I have gone through that report and noted that it is not relevant for the petitions in hand. The question in that case was whether the financial institution as defined in Section 2 of the FIO could get FIR registered under Section 489-F, PPC for dishonour of cheque issued to it by a customer for repayment of finance or fulfillment of obligation.

18. The Petitioner alleges that the Respondents issued the cheques to it after the default to liquidate their liability and in every application has mentioned the date and named two persons who witnessed the transaction. The Respondents, however, deny this fact. Their stance is that they gave the cheques to it as security at the time of disbursement of loan so no offence under Section 489-F, PPC is made out. It is by now well settled that if the officer-in-charge of a police station receives a complaint or information about the commission of a cognizable offence, he is obligated to register the FIR forthwith. The question as to which party’s version is correct can only be determined during investigation. Reliance is placed on Muhammad Bashir v. Station House Officer, Okara Cantt. and others (PLD 2007 SC 539). Admittedly, in the present cases the Petitioner’s applications disclose commission of a cognizable offence so this Court could have straightaway directed registration of FIR. However, in view of the fact that the Respondents have raised another important legal issue, I pause here to address it.

1. Section 489-F, PPC enacts as follows:

489-F. Dishonestly issuing a cheque.--Whoever dishonestly issues a cheque towards repayment of a loan or fulfilment of an obligation which is dishonoured on presentation, shall be punished with imprisonment which may extend to three years or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque.

20. A bare reading of the above section shows that the foundational elements to constitute the offence are: (i) the cheque was duly issued, (ii) it was issued with dishonest intent, (iii) it was issued towards repayment of a loan or fulfillment of an obligation, and (iv) it was dishonoured on presentation.

21. The Oxford Advanced Learner’s Dictionary (8th Edition) defines “obligation” as “(a) the state of being forced to do something because it is your duty, or because of a law etc.; or (b) something which you must do because you have promised, because of a law etc.” Similarly LEXICO, the on-line dictionary,[5] defines the said term as “an act or course of action to which a person is morally or legally bound; a duty or commitment.” According to Sir John Salmond, an obligation is “a proprietary right in personam or a duty which corresponds to such a right ... obligations are all in one class of duties, namely those which are co-relatives of rights in personam.” Obligation may be of many types but two of them are important for our present discussion: ‘pure obligation’ and “conditional obligation”. Every obligation whose performance does not depend upon a future or uncertain event, or upon a past event unknown to the parties, and can be demanded at once is called pure obligation. It may also be termed as absolute obligation. On the other hand, in conditional obligations, the acquisition of rights, as well as the extinguishment or loss of those already acquired, depends upon the happening of the event which constitutes the condition. Closely related to that is the concept of contingent liability. It is an obligation that is not presently fixed and absolute but which may become so on the happening of some future and uncertain event.

22. The question as to whether cheques given as security if dishonoured would attract Section 489-F, PPC has generated a lot of debate but was raised before the Hon’ble Supreme Court for the first time in Mian Allah Ditta v. The State and others (2013 SCMR 51). However, it has its own facts and doesn’t help the Respondents. In that case the Investigating Officer apprised the Court that during investigation it had come to light that the parties had a dispute and they agreed to refer it to arbitration and before entering on the reference the arbitrator had taken the cheque from the accused as security. Further, the sum for which the cheque was drawn did not reflect the actual liability of the accused. In the circumstances, the apex Court avoided deliberation on the issue “lest it may prejudice any one during investigation or trial” and admitted the accused to pre-arrest bail.

1. In India, Section 138 of the Negotiable Instruments Act, 1881 (the “N.I. Act”), criminalizes dishonour of cheques. In M/s Indus Airways (Pvt.) Ltd. and others v. M/s Magnum Aviation (Pvt.) Ltd. and another [(2014) 12 SCC 539] the question before the Supreme Court of India was whether the post-dated cheques issued by the Appellants as an advance payment in respect of the purchase order could be considered in discharge of legally enforceable debt or liability and, if so, whether the dishonour of said cheques amounted to an offence under Section 138, ibid. The Court answered in the negative holding as under:

“For a criminal liability to be made out under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. We are unable to accept the view of the Delhi High Court that the issuance of cheque towards advance payment at the time of signing such contract has to be considered as subsisting liability and dishonour of such cheque amounts to an offence under Section 138 of the N.I. Act. The Delhi High Court has traveled beyond the scope of Section 138 of the N.I. Act by holding that the purpose of enacting Section 138 of the N.I. Act would stand defeated if after placing orders and giving advance payments, the instructions for stop payments are issued and orders are cancelled. In what we have discussed above, if a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise and material or goods for which purchase order was placed is not supplied by the supplier, in our considered view, the cheque cannot be said to have been drawn for an existing debt or liability.”

1. In a subsequent case, cited as Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Limited [(2016) 10 SCC 458], the director of the appellant company gave post-dated cheques to the respondent under a written agreement by way of security for timely payment of installment of loan. The question arose whether dishonour of such cheque constituted an offence. The Supreme Court of India distinguished the dictum in Indus Airwayscase, supra, and ruled:

“We have given due consideration to the submission advanced on behalf of the appellant as well as the observations of this Court in Indus Airways (supra) with reference to the explanation to Section 138 of the Act and the expression ‘for discharge of any debt or other liability’ occurring in Section 138 of the Act. We are of the view that the question whether a post-dated cheque is for ‘discharge of debt or liability’ depends on the nature of the transaction. If on the date of the cheque liability or debt exists or the amount has become legally recoverable, the Section is attracted and not otherwise. Reference to the facts of the present case clearly shows that though the word “security” is used in clause 3.1(iii) of the agreement, the said expression refers to the cheques being towards repayment of installments. The repayment becomes due under the agreement, the moment the loan is advanced and the installment falls due. It is undisputed that the loan was duly disbursed on 28th February, 2002 which was prior to the date of the cheques. Once the loan was disbursed and installments have fallen due on the date of the cheque as per the agreement, dishonour of such cheques would fall under Section 138 of the Act. The cheques undoubtedly represent the outstanding liability.”

The Supreme Court further observed:

“Judgment in Indus Airways (supra) is clearly distinguishable. As already noted, it was held therein that liability arising out of claim for breach of contract under Section 138, which arises on account of dishonour of cheque issued was not by itself at par with criminal liability towards discharge of acknowledged and admitted debt under a loan transaction. Dishonour of cheque issued for discharge of later liability is clearly covered by the statute in question. Admittedly, on the date of the cheque there was a debt/liability in presenti in terms of the loan agreement, as against the case of Indus Airways (supra) where the purchase order had been cancelled and cheque issued towards advance payment for the purchase order was dishonoured. In that case, it was found that the cheque had not been issued for discharge of liability but as advance for the purchase order which was cancelled. Keeping in mind this fine but real distinction, the said judgment cannot be applied to a case of present nature where the cheque was for repayment of loan installment which had fallen due though such deposit of cheques towards repayment of installments was also described as “security” in the loan agreement. In applying the judgment in Indus Airways (supra), one cannot lose sight of the difference between a transaction of purchase order which is cancelled and that of a loan transaction where loan has actually been advanced and its repayment is due on the date of the cheque.”

1. No doubt Section 138 of the Indian N.I. Act is different from Section 489-F, PPC but the phrase “discharge of debt or liability” in the former somewhat carries the same meaning as “repayment of a loan or fulfilment of an obligation” in the latter. Therefore, following the ratio in Sampelly Satayanarayan Rao’s case, supra, the contention of Mr. Alkara that FIR cannot be registered under Section 489-F, PPC for dishonour of a post-dated cheque given as security is repelled.

2. Syed Zeeshan Haider, Advocate, has rightly pointed out that in Section 489-F, PPC the word “dishonestly” is of vital importance. Section 24, PPC defines the aforesaid term as follows:

24. “Dishonestly”--Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing “dishonestly”.

27. Since dishonest intention on the part of the drawer of a bad cheque is one of the foundational elements to constitute the offence, the prosecution is must prove it to succeed. However, this would be during investigation and the trial of the case and not before it, i.e. not at the time of registration of FIR. In Maj. (Retd.) Javed Inayat Khan Kiyani v. The State (PLD 2006 Lah. 752) a learned Single Judge of this Court opined that it can also be inferred from the drawer’s conduct. Therefore, the payee must give him notice under Section 30 of the Negotiable Instruments Act, 1881, before undertaking criminal proceedings.

28. Although it was nobody’s case that the Petitioner had advanced the loan to the Respondents as “Qarz-e- Hasna”, the JOP took it as one of the grounds to dismiss the Petitioner’s applications. Qarz-e-Hasna is a form of interest- free loan that is extended by a lender to a borrower on the basis of benevolence (Ihsan). It is a gratuitous loan extended to the people in need for a specified period of time (free from interest/mark-up or service charges) and is to be returned when convenient by the loanee. This Court has already held in Haji Muhammad v. Justice of Peace/Additional Sessions Judge and 2 others (2016 YLR Note 93) that when the loanee of Qarz-e-Hasna voluntarily and knowingly issues a cheque for a specific date and the same is dishonoured, it constitutes a cognizable offence in terms of Section 489-F, PPC.

29. For what has been discussed above, the SHO concerned is directed to register FIR as mandated by Section 154, Cr.P.C. if the Petitioner approaches him with a copy of the notice under Section 30 of the Negotiable Instrument Act, 1881, and take further steps in accordance with law to take the matter to its logical end.

1. In the result, W.P. No. 8502/2019 and those mentioned in Schedule-A are accepted and the petitions impugned therein are set aside while those listed in Schedule-B are dismissed.

(M.M.R.) Petition dismissed

[1]. Preamble to the Pakistan Penal Code, 1860.

[2]. Section 1 PPC.

[3]. Proviso to clause (b) of Section 7(1) of the FIO.

[4]. Section 20(6) of the FIO.

[5]. www.lexico.com.

PLJ 2021 Lahore 56 [Multan Banch, Multan]

Present: Jawad Hassan, J

TANVEER CHISHTI--Petitioner

versus

CITY POLICE OFFICER and others--Respondents

W.P. No. 4276 of 2020, decided on 19.03.2020.

Punjab Overseas Commission Act, 2014 (XX of 2014)--

----Ss. 4, 6 & 7--Constitution of Pakistan, 1973, Art. 199--Recovery of amount--Settlement deed--Civil dispute--Powers of commissioner--Maintainability--Challenge to--Commissioner, accordingly, is empowered to only transmit a complaint received from an Overseas Pakistani to a Government Agency for redressal, or to refer any complaint of an Overseas Pakistani to Ombudsman for further necessary action in accordance with law--Govt. Agencies have summoned Petitioner, who is a private person, without there being any criminal case registered against him, in order to determine a civil dispute between parties--Such actions on behalf of Govt. Agencies are patently in excess of their powers--It is an established principle of law that Overseas Pakistanis, no matter wherever they may be, are subject to same protection of law as of every other Pakistani without any discrimination--It contemplates that equal is not preferential and thus Overseas Pakistanis are not given any preference for resolutions of disputes by Govt. Agencies--If there is any dispute between parties over transaction of money, they may avail remedy under Civil Procedure Code, 1908 (the “C.P.C.”) before Civil Court which is Court of ultimate jurisdiction and is empowered to deal with such like matters--Since instant matter relates to civil dispute, Respondent No. 7 may put into operation jurisdiction of Court of competent Civil jurisdiction for redressal of his grievance by filing a suit with all relevant material/documents and producing evidence in support of his assertion so as to substantiate his claim--Respondent No. 7 has only stated in his complaint that he is a British national having a British Passport without uttering anything about his permanent or temporary residence for a definite period in United Kingdom, which is sine qua non for attracting jurisdiction for an ‘Overseas Pakistani’--As far as objection of law officer regarding maintainability of this writ petition is concerned, under Art. 4 of Constitution of Islamic Republic of Pakistan, 1973, petitioner has an inalienable right to enjoy protection of law and to be treated in accordance with law and has every right to knock door of this Court if this inalienable right is denied to him--This writ petition is disposed of with a direction that complaint of Respondent No. 7 will be decided by Commission, after hearing all concerned including Petitioner, strictly in accordance with law/Act, keeping in view above observations of this Court, including discussion on law points, through a speaking order, within four weeks from receipt of certified copy of this order--Commission shall also determine whether Respondent No. 7 is an Overseas Pakistani and whether dispute in hand is a third party dispute or dispute relating to Govt. Agencies--Petition was disposed of.

[Pp. 66, 67, 69, 70 & 72] E, F, G, H, I, J, K & L

Words & Phrases--

----Emigrant--Someone who leaves his or her country for any reason with intent to establish a permanent residence elsewhere.--Emigration--Act of leaving a country with intent not to return and to reside elsewhere--Emigration is usually defined as voluntary removal of an individual from his home State with intention to residing abroad--However, not all emigration is voluntary; there sometimes exists forced emigration; even mass emigration--Emigration may also be due to flight for political reasons or expulsion--One then speaks of refugees or exiles--Immigrate--To come to dwell or settle; to move into a country where one is not a native for purpose of permanent residence--Immigration--“Act of entering a country with intention of settling there permanently.”

[P. 62] B

Black’s Law Dictionary 11th Edition

Words & Phrases--

----Emigrant--An “emigrant” is one who emigrates or quits one country or region to settle in another; one who quits his country for any lawful reason, with a design to settle elsewhere, and takes his family with him--Emigrate--To “emigrate” is to remove from one country or state to another for purposes of residence--Immigrant--“Immigrant” as used in immigration law included every alien coming to country either to reside permanently or for temporary purposes. [P. 63] C

Words and Phrases Volume 14-A and 20 Permanent Edition

Words & Phrases--

----Connected with foreign countries, especially those separated from your country by sea or ocean. [P. 63] D

Oxford Advanced Learner Dictionary New 8th Edition

Punjab Overseas Commission Act, 2014 (XX of 2014)--

----S. 2(i)--Overseas Pakistani--Person can be characterized as Overseas Pakistani who has (i) origin of this country and is (ii) either permanently or (iii) temporarily settled outside Pakistan for purposes of (iv) employment, (v) carrying on a business or vocation and for any other purpose with (vi) intention to stay outside Pakistan for an unspecified period. [P. 59] A

Mian Tanveer Kamran, Advocate for Petitioner.

Mr. Azhar Saleem Kamlana, A.A.G. (on Court call).

Ch. Shahid Aleem, A.P.G. for Respondents Nos. 1 to 4 (on Court call).

Date of hearing: 19.3.2020.

Order

The Petitioner has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) with a view to seek a declaration to the effect that proceedings being conducted by the Punjab Overseas Pakistani Commission (the “Commission”), on complaint of the Respondent No. 7, are illegal and without lawful authority.

I. BACKGROUND OF THE DISPUTE

1. Succinct facts germane to the disposal of this constitutional petition are that the Respondent No. 7, who holds a foreign national passport but is permanently residing in Gulgasht Colony Multan, Pakistan invoked the forum of the Commission under the Punjab Overseas Pakistanis Commission Act, 2014 (the “Act”) for resolution of a dispute concerning recovery of investment/concealed amount of Rs. 6.2 million from the Petitioner and one Sheikh Muhammad Rizwan. It has also been brought to the fore that the issue between the Petitioner and the Respondent No. 7 had already been resolved in terms of a Settlement Deed/Agreement dated 9th of October, 2019 (the “Settlement Agreement”), nonetheless the Petitioner was constrained to file Writ Petition No. 2522 of 2020 on account of unlawful actions on the part of the Respondents in utter departure thereof, yet such constitutional petition was disposed of by this Court vide order dated 27th of February, 2020 on the basis of a statement/undertaking recorded by the police officials to the effect that they will act strictly in accordance with law. The Petitioner has alleged that Respondents Nos. 1 to 6 are adamant to illegally, unlawfully and forcibly recover the disputed investment/ concealed amount from him despite of the fact that he has no nexus with the controversy between Respondent No. 7 and one Sheikh Muhammad Rizwan.

II. ARGUMENTS OF THE PETITIONER

1. Mian Tanveer Kamran, Advocate while arguing on behalf of the Petitioner submitted that the Respondent No. 7, a foreign national is living in Pakistan and residing at Gulgasht Colony, Multan, approached the Commission under the Act for resolution of a dispute viz-a-viz recovery of investment/concealed amount, claiming himself to be an Overseas Pakistani. He urged that the issue between the Petitioner and Respondent No. 7 has already been set at rest under the Settlement Agreement; yet another dispute erupted between the Respondent No. 7 and one Sheikh Rizwan, which has no bearing on the Petitioner but the Respondents Nos. 1 to 6 are surprisingly prone to recover the investment/concealed amount under dispute from him by resorting to coercion and illegal means. He asserted that previously the Petitioner moved Writ Petition No. 2522 of 2020 which was disposed of by this Court in view of the statement dated 27th of February, 2020 by the police officials whereby they had reassured to act in accordance with law.

4. Learned counsel next urged that section 2(i) of the Act ibid only that person can be characterized as Overseas Pakistani who has (i) origin of this country and is (ii) either permanently or (iii) temporarily settled outside Pakistan for the purposes of (iv) employment, (v) carrying on a business or vocation and for any other purpose with (vi) the intention to stay outside Pakistan for an unspecified period; therefore, the Respondent No. 7, who is permanently residing in Multan, does not fall within the purview nor can he be termed as an ‘Overseas Pakistani’. He further maintained that allegiance to the Constitution as well as adherence to the law is inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan. He placed reliance on the case of “Tahir Mirza v. Saleha Mehmood, DCO and others” (2019 YLR 2852) in this regard.

1. Mian Tanveer Kamran, Advocate reiterated that the Commission should have first determined as to whether the Respondent No. 7 is an Overseas Pakistani as defined under Section 2(i) of the Act and only thereafter was supposed to proceed in the matter. He placed reliance on the recent judgment of this Court reported as “Tariq Mehmood v. Punjab Overseas Pakistani Commission and 2 others” (PLD 2020 Lahore 49) in which this Court has delineated the functions of the Commission and directed it to enquire/examine the complaint in line with the available record and decide the matter in accordance with the law after hearing both the parties.

III. ARGUMENTS OF THE LAW OFFICER

1. Ch. Shahid Aleem learned APG for Respondents Nos. 1 to 4 while advancing his arguments apprised to this Court that the plea of harassment to the Petitioner by the Police hierarchy has already been agitated and disposed of by this Court in earlier Writ Petition No. 2522/2020, therefore, this writ petition is not maintainable.

2. Mr. Azhar Saleem Kamlana, learned AAG further objects to the locus standi of Petitioner in the instant matter and calls in question the maintainability of this petition on the premise that the Commission is competent under the Act to deal with the matters relating to the Government Agencies. He attempted to clarify that the Commission has been constituted under Section 4 of the Act while the Commissioner is appointed under Section 6 of the Act with powers to perform functions under Section 7 of the Act, which encompassed the receiving and transmission of the complaints and suggestions of the Overseas Pakistanis to concerned government agencies/offices. He adds that although this Court has also established an Overseas Pakistanis Cell to entertain the issues of Overseas Pakistanis with solemn object and with a view to efficiently adjudicate upon their cases in a bid to resolve their issues in expeditious manner yet the functions of the Commission are to deal with those issues on the administrative side and this Court can only look into the matters and adjudicate upon the instant petition only if the case of Respondent No. 7 falls within the definition of Overseas Pakistani as provided in Section 2(i) of the Act. In this connection, he placed reliance on the judgment of this Court passed in the case of Shahid Idrees v. Government of the Punjab and others (PLD 2018 Lahore 284).

3. I have heard the arguments and perused the record.

IV. DOCUMENTS TO BE EXAMINED FOR DETERMINATION

1. The Petitioner has filed the instant petition to declare the application of Respondent No. 7 before the Commission as null and void and to set aside the proceedings carried out by the Commission on the said application, with the following prayer:

“Therefore, relying upon all above narrated submission, it is most respectfully prayed that this writ petition may very kindly be accepted and the application (Annexure-B) filed by the Respondent No. 7 may very kindly be declared null and void, and proceedings carried out by the Respondent upon the application may kindly be set aside by this Hon’ble Court being not maintainable in the circumstances, as in the light of affidavit submitted by the Respondent No. 7, matter is of purely civil nature and Respondent No. 7 has to approach the learned Civil Court and the Respondents be directed to remain within the four corners of law.

It is further prayed that proceedings upon the application of the Respondent No. 7 may very graciously be stayed and Respondent No. 2 may kindly be restrained from calling the Petitioner at his office till the final decision of the instant writ petition.”

1. A careful perusal of the Settlement Agreement shows that the existing matter between the parties is that of civil nature, which is manifested from the complaint filed by the Respondent No. 7 before the Commission (Annexure-B), relevant portion of which is produced below:

“As per cited subject it is submitted that, I Hafeez Ahmed Anjum son of Muhammad Yousaf bearing CNIC No. 36302-0407286-1, resident of North Gulgasht Multan and I am also British national bearing British Passport No. 517266735. I have invested amount PKR 6.2 (M) with Tanveer Chisti son of Muhammad Shafi and Mr. Sheikh Muhammad Rizwan son of Muhammad Tayyab for the purpose of import of jewellery and cosmetics last year now both the persons mentioned above have refused to return my amount. It is humbly requested to look into the matter and provide justice.”

In his complaint, the Respondent No. 7 has merely mentioned that he is a British national having a British Passport and that he has invested Rs. 6.2 million with the Petitioner and one other person for the purposes of import of jewelry and cosmetics, however, both of them have now refused to return his invested amount.

V. MOOT POINTS

1. After hearing the parties at length, and out of the instant Petition, following moot points have arisen which require determination of this Court:

A. Whether the Commission is obliged to first decide whether the person complaining, falls under the definition of Overseas Pakistani?

B. Whether the Commission can entertain complaint of a foreign passport holder who is permanently residing in Pakistan?

C. Whether the Commissioner can exercise any of its powers to resolve the disputes of civil nature of an Overseas Pakistani?

D. Whether an Overseas Pakistani can be given any preference over the nationals by the Government Agencies?

VI. DETERMINATION BY THE COURT (RATIO DECIDENDI)

1. The history of mankind is replete with the examples of people from different nationalities and cultures migrating from their parental societies to others in the hope of earning a better future and following the trail of pursuit of happiness from one country to another either for permanent settlement or for a short duration to look for a better social and economic conditions. They are generally referred to as ‘overseas’ of the country. Although this term has not been defined in the Constitution, but the word ‘emigration’ has been used in the Federal List, Part-I, Item No. 6 in respect of admission into and expulsion from Pakistan:

“Admission into, and emigration and expulsion from, Pakistan including in relation thereto the regulation of the movements in Pakistan of persons not domiciled in Pakistan, pilgrimages to places beyond Pakistan.”

It is essential to understand the difference between the ‘emigration’ and ‘immigration’ before going any further. The Black’s Law Dictionary 11th Edition defines the following terms as under:

Emigrant

“Someone who leaves his or her country for any reason with the intent to establish a permanent residence elsewhere.”

Emigration

“The act of leaving a country with the intent not to return and to reside elsewhere.”

“Emigration is usually defined as the voluntary removal of an individual from his home State with the intention to residing abroad. However, not all emigration is voluntary; there sometimes exists forced emigration; even mass emigration. Emigration may also be due to flight for political reasons or expulsion. One then speaks of refugees or exiles.”

Immigrate

“To come to dwell or settle; to move into a country where one is not a native for the purpose of permanent residence.”

Immigration

“The act of entering a country with the intention of settling there permanently.”

As per Words and Phrases Volumes 14-A and 20 Permanent Edition by Thompson, the terms are defined as follows:

Emigrant

“An “emigrant” is one who emigrates or quits one country or region to settle in another; one who quits his country for any lawful reason, with a design to settle elsewhere, and takes his family with him.”

Emigrate

“To “emigrate” is to remove from one country or state to another for the purposes of residence.”

Immigrant

“Immigrant” as used in immigration law included every alien coming to country either to reside permanently or for temporary purposes.”

In addition, the Oxford Advanced Learner Dictionary New 8th Edition defines “Overseas” as:

“Connected with foreign countries, especially those separated from your country by the sea or ocean.”

In view of above, ‘emigrant’ means a person who leaves his/her own country in order to settle permanently in a foreign country, while ‘immigrant’ means a person who comes to live permanently in a foreign country.

A. Overseas Pakistanis

1. The Act establishes the Punjab Overseas Pakistanis Commission with a mandate to receive and redress the grievances of Overseas Pakistanis relating to Government Agencies by referring their complaints and suggestions to the concerned offices. Sections 2(g) and 2(i) of the Act defines ‘Government Agency’ and ‘Overseas Pakistani’ as follows:

“(g) “Government Agency” means a department, attached department or special institution of the Government, a local government, or a body corporate owned or controlled by the Government or a local government;

(i) “Overseas Pakistani” means a person of Pakistani origin who is either permanently or temporarily settled outside Pakistan:

(i) for employment; or

(ii) for carrying on a business or vacation; of

(iii) for any other purpose with intention to stay outside Pakistan for an unspecified period;” (emphasis added)

In view of this definition, any person of Pakistani origin, has to fulfill these conditions, in order to acquire the status of Overseas Pakistani and have recourse to the mechanism provided under the Act. For this purpose, the Commission, has to firstly, ensure that the person preferring a complaint to it, falls under the definition of Overseas Pakistani, before taking any step, under the Act or proceeding, with his Complaint. For a complainant, this is the necessary foundational touchstone, which he is required to meet, for putting in place the extraordinary forum, to seek redress of his grievance, against a Government Agency, and it is the very quintessential part, which is required to be determined, in the first instance by the Commission, before proceeding with the complaint, and adopting the mechanism of transmitting the same to the Government Agency, while recommending initiation of disciplinary actions against the delinquent; but there appears abdication to discharge obligation under the Act. Thus, before proceeding further with his complaint in any manner, it enjoined upon the Commission to first examine and determine the status of Respondent No. 7 as Overseas Pakistani under the definition as provided by the Act?

1. It is not far-fetched to point out that definition of the term “Overseas Pakistani” provided by the Act and reproduced here-in-above, contemplates that a person of Pakistani origin or national, who is not residing outside Pakistan, temporarily or permanently, for employment, business, vocation, or for any other purpose for an unspecified period, cannot be regarded as an Overseas Pakistani. So, a person merely having nationality of another country but living in Pakistan permanently cannot be termed as an Overseas Pakistani. The Act provides such mechanism for redressal of grievance and protection for Overseas Pakistani only and not for every dual national. Nothing has yet been brought on record to divulge that Respondent No. 7 was residing outside Pakistan on a permanent basis for any of the purposes listed above.

B. Powers of the Commission(er)

1. On the other hand, the functions of the Commission are provided in Section 4 of the Act, under which the Commission has powers to review annual reports and performance of the Commissioner, to resolve conflicts between the Commissioner and a Government Agency, to develop criteria for constitution of Advisory Council and to nominate members of the Advisory Council and the District Overseas Pakistanis Committees. The Overseas Pakistanis Commissioner is appointed under Section 6 of the Act, and its power and functions have been provided in Section 7 of the Act. Section 7(1) of the Act authorizes the Commissioner, among others, to transmit a complaint received from an Overseas Pakistani to a Government Agency for redressal thereof, or to refer any complaint of an Overseas Pakistani to the Ombudsman for further necessary action in accordance with law. Under Section 7(2) of the Act, such Government Agency is also legally required to send its response to the Commission within thirty (30) days. In case of failure of such Government Agency to send reply to the Commissioner within the prescribed period, the Commissioner is authorized to recommend disciplinary action against such public servants (Section 7(1)(d)). The Commissioner can also recommend initiation of anti-corruption proceedings against the public servant on the basis of preliminary findings, if a case for initiating criminal proceedings under the relevant law is prima facie made out, with a view to safeguard the rights of an Overseas Pakistani (Section 7(1)(e)). The Act does not authorize the Commissioner or the Government Agencies to either register a case or file a suit against a private person either on the complaint so filed; or on behalf of an Overseas Pakistani in any manner.

2. The above-mentioned powers of the Commission and the Commissioner have also been highlighted by this Court in Shahid Idrees v. Government of the Punjab and others (PLD 2018 Lahore 284), in which it has been held that the Commission is more of a facilitation Centre in Pakistan for the Overseas Pakistanis, who cannot attend to their affairs by themselves. The Commissioner simply forwards the complaint of an Overseas Pakistani to the concerned Government Agency. This judgment further provides that

“14. The main purpose of the Commission is to help/redress the grievance of Overseas Pakistanis relating to Government Agencies. The grievance is, therefore, limited to the obligations and duties of the Government Agencies under the law. In other words, the scope of the complaint must correlate to the functions of the Government Agencies under the law. The complainant cannot expect the Government Agency to determine third party rights in a dispute between an Overseas Pakistani and another private person. No such power is vested in the Government Agency under the law. The complaint of an Overseas Pakistani or the redressal of his grievance is limited and confined to the jurisdiction enjoyed by the Government Agency under the law.”

17. The Commissioner, accordingly, is empowered to only transmit a complaint received from an Overseas Pakistani to a Government Agency for redressal, or to refer any complaint of an Overseas Pakistani to the Ombudsman for further necessary action in accordance with law. It is incumbent upon such Government Agency to respond to the Commission within thirty (30) days. In the event of failure of such Government Agency within prescribed days, the Commissioner is vested with the authority to recommend disciplinary action against such public servants.

C. Powers of the Government Agencies

1. The Government Agencies in general and the Police or the Local Government in particular, on the behest and directive of the Commissioner, in the instant case, have initiated proceedings against private persons by issuing them summons/notices in order to resolve a civil dispute. In the instant case, it has been noticed that the Government Agency on receiving the complaint from the Commissioner, instead of deciding the complaint within the ambit of law, mistakenly assumed the role of an executing agency and in this process embarked upon the determination of third party rights to settle the dispute complained about. This is certainly an overreach transgression of the powers by the Commissioner under the Act and by the Government Agencies under their respective laws.

2. Ostensibly, there appears an erroneous and perverted outlook as if a complaint so transmitted to a Government Agency by the Commissioner obligated such Government Agency to deal with the complaint by interfering and intruding into third party rights of private persons, but I am afraid that those Agencies are bereft of unbridled powers. The determination of third-party rights is unequivocally a judicial function and can only be carried out by a Court of law i.e., the judicature, and not by the Commission or the Government Agencies, which form executive organs of the State. This foundational constitutional principle is embedded in Article 175 of the Constitution. It is to be clarified that the Government Agency is free to proceed against a person complained against provided such power so articulated within the preview of relevant law. This necessarily leads us to the irresistible conclusion that Government Agency has no authority to summon a private person in excess of its powers particularly when the law it operates under, does not expressly or by necessary implication finds mention of such powers. No law can authorize an executive Government Agency to determine rights of private parties, as it is the sole prerogative of the Courts of law. When the Government Agency begins to exercise judicial power in order to determine private rights, the proceedings become unconstitutional and illegal. The Commission or the Government Agencies are not the Courts and, therefore, any assumption of judicial power by the Commission or the Government Agencies on the behest of the Commission is also unconstitutional and illegal. Reliance is placed on Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others (PLD 2013 SC 501); Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445); and Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs Islamabad and others (PLD 1999 SC 504).

20. In the instant case, Government Agencies have summoned Petitioner, who is a private person, without there being any criminal case registered against him, in order to determine a civil dispute between the parties. Such actions on behalf of the Government Agencies are patently in excess of their powers.

D. Same Protection of Laws for Overseas Pakistanis

21. It is an established principle of law that the Overseas Pakistanis, no matter wherever they may be, are subject to the same protection of law as of every other Pakistani without any discrimination. It contemplates that equal is not preferential and thus the Overseas Pakistanis are not given any preference for resolutions of disputes by the Government Agencies. This principle has been laid down in detail by this Court in Tahir Mirza v. Saleha Mehmood, DCO and others (2019 YLR 2852), which observes as follows:

“no one, on the basis that he/she is an overseas Pakistani, can take law in his/her own hand and is above the law because Article 4 of the [Constitution] makes it very clear that it is the inalienable right of every citizen, WHEREVER HE MAY BE, AND OF EVERY OTHER PERSON FOR THE TIME BEING WITHIN PAKISTAN, shall enjoy the protection of law and to be treated in accordance with law (under the Act) and no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. This Article clearly protects the citizens of Pakistan defined under Article 260 of the Constitution whether inside or outside Pakistan (wherever they may be). The Hon’ble Apex Court of the Country in National Commission on Status of Women through Chairperson and others v. Government of Pakistan through Secretary Law and Justice and others (PLD 2019 SC 218) expounded the scope of Article 4 of the Constitution by holding that adverting to international law on the subject, it is pertinent to note that Pakistan is a signatory to the Universal Declaration of Human Rights (UDHR) since 1948, Articles 7 and 8 whereof are relevant which provide as under:--

“7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

1. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the constitution or by law.”

Article 4(1) of the Constitution goes further than Article 2 of the ICCPR by extending the right to enjoy the protection of law to every citizen regardless of where he is. Moreover, persons, who are not citizens, are also given this right while they are in Pakistan. The value placed by the Constitution on the inalienability of this right to protection of the law for all can be gauged from the fact that this right is further extended to every other person for the time being within Pakistan. Article 4(2)(a) to (c) of the Constitution provides for the specific right to protection from any detrimental action with regards to life, liberty, body, reputation or property and ensures that no person is compelled to do anything or forbidden from any action unless the law specifically provides for the same.

4 Further, 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. The Honorable Full Bench of the Supreme Court of Pakistan in the judgment cited as Watan Party and another v. Federation of Pakistan and others (PLD 2011 SC 997) has held that Article 4 thereof remained fully operative, which laid down that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan and in particular no action detrimental to the life, liberty, body, reputation or property of any person would be taken except in accordance with law. The august Supreme Court in the case reported as President Balochistan High Court Bar Association and others v. Federation of Pakistan and others (2012 SCMR 1784) has further 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. Similarly, it is also inviolable obligation of every person for the time being within Pakistan. Thus, adherence to the Constitution and the Law by the citizens, who are officials or otherwise, is mandatory. Non-compliance of the Constitution and the Law makes a citizen liable for action, in accordance with law.

1. In view of the judgments mentioned above and the provisions contained in Articles 4 and 5 of the Constitution, it is observed that both the citizens IN AND OUTSIDE THE PAKISTAN are protected under the Constitution without any discrimination as provided under Article 25 of the Constitution. Article 25 of the Constitution also states in unequivocal terms that all citizens are equal before law and are entitled to equal protection of law. No one is above the law and everyone has to follow the law in its true spirit.”

E. Remedy for the Respondent No. 7

22. If there is any dispute between the parties over transaction of money, they may avail remedy under the Civil Procedure Code, 1908 (the “C.P.C.”) before the Civil Court which is Court of ultimate jurisdiction and is empowered to deal with such like matters. This Court cannot lose sight of the principles of natural justice for the advancement of the rule of law, in that, these principle do not militate against rather facilitate the access to justice. Since the instant matter relates to civil dispute, the Respondent No. 7 may put into operation the jurisdiction of the Court of competent Civil jurisdiction for the redressal of his grievance by filing a suit with all relevant material/documents and producing evidence in support of his assertion so as to substantiate his claim.

VII. ANALYSIS

23. It is manifestly clear that in order to invoke jurisdiction of the Commission, a person has to show that he is an Overseas Pakistani with Pakistani origin and he/she either permanently or temporarily resides outside Pakistan for employment, business or any other purpose as defined in the Act with intention to stay there for an unspecified period but the Respondent No. 7 has only stated in his complaint that he is a British national having a British Passport without uttering anything about his permanent or temporary residence for a definite period in United Kingdom, which is sine qua non for attracting the jurisdiction for an ‘Overseas Pakistani’. Further, the function of the Commission is only to transmit the complaint to a Government Agency/department, defined in Section 2(g) of the Act, which has to exercise its powers within the parameters of the law applicable in the matter, without assuming any extended role and no such self-augmented power, which has not been given to it by the law, can be illegally assumed by any Government Agency. Even otherwise, since the dispute between the Respondent No. 7 and the Petitioner, if any, is that of civil nature, the Respondent No. 7 has remedy to approach the Civil Court.

VIII. Objection regarding maintainability of writ petition

24. As far as objection of learned law officer regarding maintainability of this writ petition is concerned, under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has an inalienable right to enjoy the protection of law and to be treated in accordance with law and has every right to knock the door of this Court if this inalienable right is denied to him. Every executive organ is obliged to perform his duties and to exercise only those powers which law has conferred upon it; otherwise same will be subject to the judicial review of Superior Courts. Judicial review means a Court’s power to judicially review the legislative and executive actions in order to maintain and sustain the rule of law. Superior Courts by means of writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto control the administrative actions. Under the dominion of Judicial review, the Superior Courts review the lawfulness of a decision or action made by a public body. In fact this is a process under which executive or legislative actions may be subject to review by the judiciary. Judicial review can be sought on the grounds that a decision-maker misdirected itself in law, exercises a power wrongly, or improperly purports to exercise a power that it does not have, which is known as acting ultra vires. The Court’s function, in exercising such power, is to ensure that the public functionaries do not act unjustly by overstepping their proper sphere. Thus when an administrative authority takes an action under a law, the question can be whether he has exceeded or abused the power conferred by the law and has therefore acted ultra vires; In the field of Judicial Review, the word “lawful” has acquired a technical meaning; when it is said that a person has acted unlawfully, it means that he has acted outside the powers conferred on him by law; and when the question is of the validity of an administrative action, the only question the Court asks is: Has the decision maker exceeded his statutory powers, thus acting ultra vires and therefore unlawfully. It is further to be noted that power of “Judicial Review” as compared to “Jurisdiction” is available to the superior Courts enshrined by the Constitution which by no stretch of imagination either can be curtailed or abridged. In Bank of Punjab’s case (PLD 2014 Lahore 92), a division bench of this Court after exhaustively discussing the material available on the subject, has laid down following three conditions to interfere in action falling within the executive domain, which are as follows:

“(1) “Illegality” which means that the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it.

(2) “Irrationality” was referred to as “Wednesbury unreason-ableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223). It applies to a decision which is so outrageous in its defiance or logic or of accepted moral standards that no sensible person who had applied his mind to the question to be settled could have arrived at it.

(3) “Procedural Impropriety” is another ground which means and includes failure of authority to observe basis rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision”

1. By now, the parameters of the Superior Court’s power of judicial review of administrative or executive action or decision and the grounds on which the Superior Courts can interfere with the same are well settled. In exercise of powers of judicial review of administrative action this Court has always the jurisdiction to examine whether any order passed by any executive or administrative authority is with or without jurisdiction. Since every order passed without jurisdiction is always void ab initio and nullity in law, therefore, this Court shall always have jurisdiction to consider such point. Furthermore, if the action or decision is perverse or is such that no reasonable body of persons, properly informed; could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters the Court would be justified in interfering with the same as was held by august Supreme Court in Corruption in Hajj Arrangements in 2010 case (PLD 2011 Supreme Court 963)

2. ……… exercise of constitutional powers by the High Court and the Supreme Court is categorized power of judicial review. Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of Fundamental Rights guaranteed by the Constitution. With the expanding horizon of Articles dealing with Fundamental

Rights, every executive action of the Government or other public bodies, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of the Superior Courts and can be validly scrutinised on the touchstone of the Constitutional mandates.

26. In view of above backdrop and in the light of Doctrine of Limine Control elaborated in Chairman Bog University of Lahore and others v. Asif Saleem (PLD 2019 Lahore 407), this writ petition is disposed of with a direction that the complaint of the Respondent No. 7 will be decided by the Commission, after hearing all concerned including the Petitioner, strictly in accordance with law/Act, keeping in view the above observations of this Court, including discussion on law points, through a speaking order, within four weeks from the receipt of certified copy of this order. The Commission shall also determine whether the Respondent No. 7 is an Overseas Pakistani and whether the dispute in hand is a third party dispute or dispute relating to Government Agencies. In the meanwhile, no adverse action shall be taken against the Petitioner, till decision of the matter by the Commission.

(Y.A.) Petition disposed of

PLJ 2021 Lahore 72 (DB)

Present: Sardar Ahmed Naeem and Farooq Haider, JJ.

AHAD KHAN CHEEMA and another--Petitioners

versus

NATIONAL ACCOUNTABILITY BUREAU, etc.--Respondents

W.P. Nos. 35056 of 2019 and 11006 of 2020, decided on 13.04.2020.

Constitution of Pakistan, 1973--

----Art. 199--National Accountability Ordinance, (XVIII of 1999), Ss. 9, 18(q) & 24(b)--Bail after arrest, refusal of--Allegations of misappropriation and embezzlement--Conducting of inquiry--Formation of consortium--Award of contract--Joint venture agreement--Beneficiary of contract--Rule of consistency--Illegal gratification--Appreciation of evidence--Exceptional circumstances--Inordinate delay in conclusions of trial--Specific role--Connection with commission of offence--A joint venture agreement was shown by Special Prosecutor NAB, not controverted by counsel, evidencing that M/s. Bismillah Engineering Services Company was lead member with 90% share--Whereas, M/s. SPARCO second JV Member and third JV Member had 9% and 1% shares, respectively--Why percentage of respective shares was not mentioned in Memo of Understanding and how M/s. Bismillah Engineering Services, a company of category C-4 assumed role of lead member with 90% shares?, counsel for petitioner could not explain circumstance, satisfactorily--Admittedly, petitioner being partner of category C-4 firm was main beneficiary of contract--PWs have also implicated petitioner in their statements recorded during investigation--Case of petitioner is also distinguishable from his co-accused including Munir Zia and Sajjad as they were not signatory to Joint Venture Agreement and petitioner claimed himself to be a Chief Executive of Lahore CASA Developers in above referred application filed under section 20 of Arbitration Act, 1940 and, thus, case of petitioner is not at par with said co-accused and rule of consistency is not attracted, in case--Statements of Mohsin Nadeem recorded during investigation giving details of properties alienated in favour of Shahid Shafique Alam Faridi, Ahmed Hussain, Sadia Mansoor, Mansoor Ahmad and Nazia Ashraf (close relatives of Ahad Khan Cheema), petitioner--Statements of witnesses including Muhammad Kashif son of Muhammad Shafique, Akbar Ali son of Din Muhammad and Akbar Ali son of Boota lend further strength to above allegation--No ill-will or animosity was attributed to any of PWs for false implication of petitioner--Deeper appreciation of evidence cannot be undertaken at this stage and Court only has to sift material tentatively--Investigation agency also concluded against petitioner--National Accountability Ordinance, 1999 is a special law with overriding effect over other laws and provided that transaction/act complained of falls within section 9 of National Accountability Ordinance,1999, thus, National Accountability Bureau has jurisdiction over matter and can proceed to inquire and investigate into same--Allegations against petitioners were not only of cheating or defrauding an individual but causing huge loss to Public-exchequer--Hence, prima facie, case of petitioners falls in exceptional circumstances where bail could only be granted when Court comes to conclusion that material available on record, prima facie, is not sufficient to link accused with commission of offence as this brings a case within meaning of “further enquiry” where release of accused becomes a matter of right--Thus, it is imperative for accused to show that he has no nexus with crime even if material collected by prosecution is tentatively taken as correct--On other hand, available record suggests that petitioner Ahad Khan Cheema was key- player and as documentation was his domain so he managed award of contract to his co-accused i.e. petitioner--Thus, in our view, there was sufficient incriminating material to believe that petitioners were linked interse and with offences with which they are charged. Charged offence is one of causing loss to public Exchequer, thus, it was not an ordinary offence--Ground of hardship/inordinate delay in conclusion of trial was also urged by counsel for petitioner--Record divulged that petitioner was arrested in this case--Trial commenced during trial, nine witnesses have reportedly been examined--However, interim order sheet of trial Court appended by counsel for petitioner alongwith Criminal Miscellaneous that certain adjournments were sought for on behalf of petitioner, thus, delay cannot be attributed to prosecution alone--Petitions was dismissed.

[Pp. 81, 83, 84, 85 & 86] A, B, C, D, E, F, G, H & I

Mr. Ashtar Ausaf Ali, Advocate for petitioner (in Writ Petition SNo. 11006 of 2020).

M/s. Azam Nazir Tarar and Muhammad Amjad Pervaiz, Advocates for the petitioner (in Writ Petition No. 35056 of 2019).

Syed Faisal Raza Bokhari and Mr. Asad Ullah Malik, Special Prosecutors for N.A.B. alongwith Muhammad Ikram and Muhammad Ali Anwar, Assistant Directors/Investigating Officers.

Date of hearing: 13.04.2020.

Order

Through this single order, we intend to decide above mentioned writ petitions whereby the petitioners seek bail in Reference No. 50/2018 filed by the National Accountability Bureau under Section 18(g) read with Section 24(b) of the National Accountability Ordinance, 1999 wherein the charge framed against the petitioners is as under:

Ahad Khan Cheema (petitioner)

i. that you accused Ahad Khan Cheema by misusing your authority entrusted the project to Strategic Project Unit which had no experience, whatsoever, regarding housing project under Public Private Partnership mode and you accused Ahad Khan Cheema in aid and abetment with your co-accused Bilal Kidwai and Israr Saeed (Approver), Chief Engineer, LDA prepared fraudulent and deceitful Request for Proposal (RFP) and bidding documents to grant undue and illegal benefit to M/s. SPARCO group (later Lahore CASA Developers) in the form of award of contract and your co-accused Bilal Kidwai malafidely drafted/prepared the said documents in violation of provisions of Public Private Partnership Act without mentioning the ratio of members of the consortium/JV which were, subsequently, approved by you accused Ahad Khan Cheema by misusing your authority in order to render illegal benefit to M/s. SPARCO Group (later Lahore CASA Developers).

ii. that you accused Ahad Khan Cheema, Bilal Kidwai, Imtiaz Haider and Israr Saeed with criminal intent and in order to extend illegal benefit to M/s. SPARCO Group ignored percentage shareholdings of each member of JV/Consortium despite written confirmation to PPP Steering Committee in meeting held on 20.11.2014 with malafide intentions and in order to grant illegal benefit to M/s. SPARCO Group.

iii. that you accused Ahad Khan Cheema in connivance with accused Shahbaz Sharif approved feasibility study, bidding documents and PFR which were prepared in violation of PPP Act, 2014 without mentioning the respective shareholdings and role of the JV members which resulted in award of contract to an ineligible firm. Moreover, you accused Ahad Khan Cheema with malafide intentions failed to comply deliberate with the directions of PPP Steering Committee regarding restriction on dilution of lead member shareholdings and continued the process of awarding the contract even after submission of JV agreement by Lahore CASA Developers having actual shareholdings of JV members was in sheer violation of documents submitted at pre-qualification stage but you also failed to exercise your duty to prevent any undue and illegal benefit to your co-accused. You also obtained illegal gratification from accused Nadeem Zia and Khalid Hussain (since PO) in the form of land measuring 99-Kanal 17-Marla valuing Rs. 136,900/- million approximately in your own name and in the name of close relatives.

Shahid Shafiq Alam Faridi (petitioner)

i. that you accused Shahid Shafiq Alam Faridi in connivance with your co-accused presented false documents of JV and obtained the contract in illegal, corrupt and dishonest manner as being C-4 company which was not eligible for the contract. However, you accused fraudulently represented M/s. SPARCO as lead member of JV whereas, as per JV agreement dated 18.05.2015 signed by you, actual lead member was M/s. Bismillah Engineering Services Co. but you accused with fraudulent intentions obtained constructive possession of land reserved for Ashiana Iqbal project and wilfully failed to complete the project which caused loss to Government Exchequer;

ii. that you all the accused persons, in active aid, abetment and connivance with each other and your co-accused (since PO) dishonestly and with malafide intentions misused the authority in order to gain/render illegal benefit for themselves and for your co- accused. Furthermore you all accused also wilfully failed to exercise your authority in order to prevent grant of contract to your co-accused and also accepted illegal gratification while indulging in offences of corruption and corrupt practices. Hence, you accused in connivance with each other, have fraudulently and dishonestly caused loss to the National Exchequer to the tune of Rs. 660/- Million approximately. Thus, in connivance with each other have committed offence of corruption and corrupt practices as defined under Section 9(a)(i)(ii)(iv)(vi) and (xii) punishable under Section 10 of the National Accountability Ordinance, 1999 and schedule thereto which is within the cognizance of this Court.

1. Learned counsel for the petitioner, namely, Ahad Khan Cheema argued as under:

i. that the mandate of the petitioner was documentation and the execution and that contract was not awarded by the petitioner;

ii. that an application was filed under Section 20 of the Arbitration Act, 1940 by the petitioner Shahid Shafiq Alam Faridi, Chief Executive Lahore CASA Developers/SPARCO group against Punjab Land Development Company which is pending adjudication and thus the dispute is civil in nature;

iii. that no loss, whatsoever, was caused to the public exchequer;

iv. that no recovery was effected from the petitioner during the investigation;

v. that the assumption of jurisdiction by the respondent bureau upon an anonymous complaint containing general and bald allegations without any supportive evidence was illegal and without lawful authority;

vi. that the cancellation of the contract on 17.04.2017 by the PLDC board many months prior to any complaint negates the false motive setup by the prosecution;

vii. that it was establish through overwhelming evidence available on record that the project was publicized both at National and International level, convening investors conference, availability of RFP, bid documents free of cost on both LDA and PPRA websites, receiving of the same by 86 parties, two extension in bid submission deadline and 30 minute extra time for bid submission also negate the hypotheses that this exercise was for any personal gain to the petitioner;

viii. that multiple department, bid opening project and financial evaluation committee including representatives of various departments as members was constituted by the petitioner, thus, allegation of any influence by the petitioner upon the said committee was unfounded and unjustified;

ix. that no one, whosoever, lodged any complaint before any forum, whatsoever, to doubt the process and this fact alone was sufficient to belie the allegation of awarding contract inclusion or in connivance with anyone;

x. that as per record no dilution of share members have taken place after submission of JVA till termination of contract and that the information under Section 14(d) of PPP Act ibid has no consequence, whatsoever, because this proposed shareholding was submitted for information and not for evaluation;

xi. that the statements of Israr Saeed and Arif Majeed were recorded in absence of the petitioner, thus, the admissibility of those statements would be adjudged by the learned trial Court, at trial;

xii. that the relatives of the petitioner including Ahmad Hassan and Masoor Hussain filed writ petition before this Court and denied to be “benamidar” of the petitioner or any interest of the petitioner in their properties and that they are contesting their ownership before the trial Court;

xiii. that the petitioner was arrested on 21.02.2018 and is behind the bars from the last more than two years;

xiv. that there were 86 prosecution witnesses and 9 witnesses have been recorded so far, the trial has not witnessed any material progress and the conclusion thereof is not insight in near future, the delay cannot be attributed to the petitioner in any manner; and

xv. that the question of the guilt of the petitioner requires further inquiry, thus, the petitioner be released on bail.

1. Learned counsel for the petitioner Shahid Shafique Alam Faridi contended that contract awarded to the petitioner was cancelled by the PLDC well in time, the petitioner has incurred huge expenses from his own pocket and the project remained unexecuted as no development work including the completion of metalled road, electrification etc was carried out at the spot; that co-accused of the petitioner including Sajjad and Munir Zia have been admitted to bail by the apex Court, thus, rule of consistency is attracted in this case and the petitioner is also to be treated alike; that all the co-accused except petitioners and proclaimed offenders have been admitted to bail by this Court and the apex Court; that the physical custody of the petitioner was not required to the Investigating Agency; that no recovery was effected from the petitioner; commencement of trial is no clog to the grant of bail if the accused is entitled to the same relief, on merits; that there is no likelihood of the early conclusion of the trial; that the kind of allegation levelled against the petitioner requires deeper appreciation of evidence not permissible at this stage; that the petitioner was first offender and have no previous record. Adds that culpability of the petitioner needs serious consideration, in the circumstances, the petitioner is entitled to bail.

2. Learned Special prosecutor for NAB submitted that the delay in the trial is not attributable to the prosecution; that after the framing of the charge nine witnesses have been examined; that the prosecution may not examine all the witnesses and that trial is likely to be concluded in near future. He further contended that the PWs implicated the petitioners in their statements recorded under Section 161, Cr.P.C.; that the approvers also lend sufficient corroboration to the prosecution story; that during the investigation certain recoveries were also effected from the petitioner Ahad Khan Cheema, reports of experts were also collected; that the petitioner was a public office holder, involved in case of corruption and corrupt practices and as there was sufficient incriminating material available against them on record, thus, this Court may not allow bail to the petitioners in Constitutional Jurisdiction.

3. We have given hearing to the learned counsel for the parties, gone through the record and given anxious considerations to the submissions made.

4. It is emerged from record that a complaint dated 31.10.2017 was received by Chairman N.A.B. against management of Public Sector Companies. Allegations of misappropriation and embezzlement were also leveled against the management of those companies. Accordingly, Inquiry No. 1(9)HQ/1826/NAB-L was authorized on 15.11.2017. Another complaint dated 17.11.2017 against M/s. Paragon City (Pvt.) Limited and management of Punjab Land Development Company was also received. The complainant alleged illegal occupation of 3100-Kanal state land against M/s. paragon City in connivance with officers/officials of Punjab Land Development. This land was proposed for the project of Ashiana-e-Iqbal. The inquiry was authorized on 10.01.2018. later on, this inquiry was upgraded into investigation and ultimately, A.C.R. No. 50/2018 was filed.

Punjab Land Development Company is owned by Government of Punjab and was registered on 09.03.2010 under Section 32 of the Companies Ordinance, 1984. Its prime responsibility was to develop modern housing schemes for low-income groups in various Districts of Punjab. Initially, the company accomplished projects including Ashiana-e- Quaid, Lahore, Ashiana Sahiwal and Ashiana Faisalabad under Government Financing Mode. Another project, namely, Ashiana-e-Iqbal was also initiated at Burki Road, Lahore in the year 2011-2012 under the same mode. After observing the formalities, the lowest bidder, namely, M/s. Ch. A. Latif & sons was awarded contract on 24.01.2013. The contractor was issued mobilization advance of PKR 75.00 Million. The contractor also started work at the project. However, said contractor was paid Rs. 5.9 million by Punjab Land Development Company as a settlement with mutual consent to withdraw from said contract. After the cancellation of the contract, the then Chief Minister directed the Punjab Land Development Company to entrust the project of Ashiana-e-Iqbal to Lahore Development Authority for the purposes of planning, designing and execution of the project. At that time Lahore Development Authority was headed by the petitioner Ahad Khan Cheema as Director General.

At this stage, it may be mentioned that at pre-qualification stage a consortium was formed including first China Metallurgical Construction Company and then substituted by M/s. Anhui construction Company, M/s. Sparco Construction Company and M/s. Bismillah Engineering Services Company. The amended partnership of firm reflects that petitioner Muhammad Shahid Shafique Alam Faridi had 80% share whereas, the remaining 20% share were owned by Munir Zia, co- accused of the petitioner. The award of illegal contract in favour of Bismillah Engineering Service Company and accomplishment of the task contrary to law and rules, by the petitioner Ahad Khan Cheema are precisely the allegation levelled against the petitioners and subject matter of the Reference.

1. First, we shall deal with the role of the petitioner, namely, Muhammad Shahid Shafique Alam Faridi. A consortium, namely, Lahore CASA Developers was awarded contract to execute the project. It was to be completed under Public Private Partnership (PPP) mode. The proposed 3100-Kanal land for the project was, allegedly, adjacent to M/s. Paragon City (Pvt.) Limited, thus, the said company had keen interest in the land of the project. Amongest the directors of the said company was Nadeem Zia (P.O.), a real brother of the co-accused of the petitioner, namely, Munir Zia. The record revealed that Bismillah Engineering Services Company was a proxy company, which acted on behalf of M/s. Paragon City (Pvt.) Limited as the bid security amount of Rs. 50,000 million and equity amount of Rs. 1.600 million was arranged from the bank accounts maintained by Nadeem Zia, Director of M/s. Paragon City, which established the link between both the companies. We may also mention that according to the contract awarded, Lahore CASA Development had to construct 6400 flats on 1000-Kanals in the form of G Plus 3 High rise flats and the consortium had to get 2000-Kanal land from the Government. The land, however, was to be transferred to the contractor in proportionate manner i.e. equal to percentage of completed flats. The worth of construction of 6400 flats was Rs. 13.46 Billion and worth of remaining 2000-Kanal land was 15.400 Billion. The available record reflects that M/s. Bismillah Engineering Services Company got the license of Category C-4 from Pakistan Engineering Council, the construction/capital cost of which could not exceed Rs. 200 million. It is also worth mentioning that at pre-qualification stage Memo. of understanding was filed by the consortium. There was no mention regarding percentage of the respective shares, which is violative of Section 14(d) of Public Private Partnership Act, 2014. It would not be out of place to mention here that a joint venture agreement dated 15.05.2015 was shown by the Special Prosecutor NAB, not controverted by the learned counsel, evidencing that M/s. Bismillah Engineering Services Company was lead member with 90% share. Whereas, M/s. SPARCO second JV Member and third JV Member had 9% and 1% shares, respectively. Why the percentage of respective shares was not mentioned in Memo. of Understanding and how M/s. Bismillah Engineering Services, a company of category C-4 assumed the role of lead member with 90% shares?, learned counsel for the petitioner could not explain the circumstance, satisfactorily. Admittedly, the petitioner being partner of category C-4 firm was the main beneficiary of the contract. The PWs have also implicated the petitioner in their statements recorded during the investigation.

The case of the petitioner is also distinguishable from his co-accused including Munir Zia and Sajjad as they were not signatory to the Joint Venture Agreement and the petitioner claimed himself to be a Chief Executive of Lahore CASA Developers in the above referred application filed under section 20 of the Arbitration Act, 1940 and, thus, the case of the petitioner is not at par with the said co-accused and rule of consistency is not attracted, in the case.

1. A review of record demonstrates that the petitioner, namely, Ahad Khan Cheema performed as Director General, Lahore Development Authority from 2013 to 2016. The project of Ashiana-e-Iqbal was entrusted to Lahore Development Authority. The mandate of the petitioner was planning, designing and execution of the project. The procedure opted for earlier projects i.e. Government Finance mode was not to be adopted and the project was to be completed under Public Private Partnership. The government of Punjab never undertook a housing project under the Public Private Partnership mode earlier. The petitioner got prepared the feasibility report from his coaccused, namely, Bilal Kidwai. At this stage, it may be mentioned that under government financing mode, feasibility for this project was prepared by M/s. KPMG, a renowned international audit and consultant firm which opined that project was feasible under the Government Financing Mode. It is required under Section 7(d) of Public Private Partnership Act, 2014 to hire transaction advisors for preparation of feasibility studies and bidding documents if the government agency does not have relevant expertise but the petitioner got prepared feasibility of the project, bidding documents, i.e. request for proposal (RFP) and draft development agreement through his co-accused, namely, Bilal Kidwai admittedly, not expert within the meaning of Public Private Partnership Act, 2014 and presented the same in 17th meeting of steering committee constituted under the Public Private Partnership Act, 2014. The Public Private Partnership cell also made certain observations. One of the observations was that dilution of lead member shareholding shall be restricted in view of Section 14(d) of Public Private Partnership Act, 2014, which stipulates that in case the person is consortium, its members, their roles and their proposed shareholdings shall be disclosed at the pre-qualification stage. As mentioned in the preceding para Memo. of Understanding signed by the JV Members was silent about their shares. However, M/s. SPARCO was on top i.e. at No. 1 and M/s. Bismillah Engineering Services Company at Serial No. 3 suggesting M/s. SPARCO as lead member whereas, in the JV agreement Bismillah Engineering Services Company by way of somersault was at No. 1 being lead member with 90% shares. Though the petitioner agreed before the committee to proceed in accordance with the said observation but failed to rectify the said defects. During the investigation, convener of the Technical Financial and Evaluation Committee, namely, Israr Saeed got recorded his statement under Section 161, Cr.P.C. which suggested that the petitioner directed him to follow RFP criteria, violative of Public Private Partnership Act, 2014. During the investigation Agha Waqar Javed Head of Public Private Partnership Cell got recorded his statement under Section 161, Cr.P.C. to the same effect. Formal agreement regarding Ashiana-e-Iqbal project between Punjab Land Development Company and Lahore Development Authority was signed on 27.01.2015, however, after award of the contract, the petitioner failed to execute the same. This fact is also confirmed by the statement of Arif Majeed Butt, examined under Section 161, Cr.P.C. His statement also supported Israr Saeed that pre-qualification was carried out strictly in accordance with RFP, in violation of Public Private Partnership Act, 2014.

9. The allegation of illegal gratification finds support from the statements of Mohsin Nadeem recorded during the investigation giving details of the properties alienated in favour of Shahid Shafique Alam Faridi, Ahmed Hussain, Sadia Mansoor, Mansoor Ahmad and Nazia Ashraf (close relatives of Ahad Khan Cheema), the petitioner. The statements of witnesses including Muhammad Kashif son of Muhammad Shafique, Akbar Ali son of Din Muhammad and Akbar Ali son of Boota lend further strength to the above allegation. No ill-will or animosity was attributed to any of the PWs for false implication of the petitioner. Deeper appreciation of evidence cannot be undertaken at this stage and the Court only has to sift the material tentatively. The investigation agency also concluded against the petitioner.

10. It is one of the white collar crimes case which are usually committed in planned manner by well-organized persons and they work underhand mechanism. In such cases, the standard of evidence normally available in the ordinary circumstances cannot be expected. They are totally different in nature from common crimes that take place in the society.

11. In such like cases, documents are generated prior to or during the commission of that offence which is essential and normally make up the major part of evidence. Bank records, accounting records, legal documents or instruments are normally the bases for the case. They may very well prove the circumstances around the alleged offence but they may not necessarily provide all the essential elements of the criminal charge e.g. the intention of the subject. The personal records like items including personal correspondence, notes in daily timers, mobile phone records must not be overlooked as there may be the evidence needed to prove the element that was not readily apparent in the books and record.

12. With regard to the contention that this matter does not fall within the purview of NAB under the National Accountability Ordinance as it falls within the exclusive domain of civil law being contractual liability. The National Accountability Ordinance, 1999 is a special law with overriding effect over other laws and provided that the transaction/act complained of falls within Section 9 of the National Accountability Ordinance,1999, thus, National Accountability Bureau has jurisdiction over the matter and can proceed to inquire and investigate into the same. The offences alleged to have been committed by the petitioners come within the purview of white collar crimes and such offence affect the society at large. The allegations against the petitioners were not only of cheating or defrauding an individual but causing huge loss to Public-exchequer. Hence, prima facie, the case of the petitioners falls in exceptional circumstances where the bail could only be granted when the Court comes to the conclusion that material available on record, prima facie, is not sufficient to link the accused with the commission of offence as this brings a case within the meaning of “further enquiry” where release of the accused becomes a matter of right.

13. We find that National Accountability Ordinance, 1999 was promulgated as a measure for recovering state money and for checking corruption and corrupt practices and for taking action against those who misused their power and authority while enriching themselves at the cost of society. Therefore, to say that this was a civil liability under the circumstances is no argument for a case covered by the National Accountability Ordinance, 1999. It is worth mentioning here at this juncture that alleged offence and its mode of commission falls within the ambit of “white collar crimes” which has its own salient features and peculiar circumstances and, therefore, a line of distinction is to be drawn between an ordinary offence and that of a “while collar crime” which is to be kept in view while sifting the evidence and approach for such evaluation must be dynamic so that conjectural presumptions and hyper technicalities having no nexus with the merits of the case could be eliminated even at the bail stage.

Thus, it is imperative for the accused to show that he has no nexus with crime even if the material collected by prosecution is tentatively taken as correct. On the other hand, the available record suggests that the petitioner Ahad Khan Cheema was key- player and as the documentation was his domain so he managed the award of contract to his co-accused i.e. the petitioner Muhammad Shafique Alam Faridi. Thus, in our view, there was sufficient incriminating material to believe that the petitioners were linked interse and with the offences with which they are charged. The charged offence is one of causing loss to public Exchequer, thus, it was not an ordinary offence.

The ground of hardship/inordinate delay in conclusion of trial was also urged by the learned counsel for the petitioner. The record divulged that the petitioner was arrested in this case on 21.02.2018. The trial commenced on 18.02.2019. During trial, nine witnesses have reportedly been examined. However, the interim order sheet of the learned trial Court appended by the learned counsel for the petitioner alongwith Criminal Miscellaneous No. 1 of 2020 reflects that certain adjournments were sought for on behalf of the petitioner, thus, the delay cannot be attributed to the prosecution alone. This question was also dealt with by the apex Court in case title ‘Tallat Ishaq v. National Accountability Bureau through Chairman and others’ (PLD 2019 SC 112) wherein their lordships ruled:

(d) In an appropriate case through exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 a High Court may grant bail to an accused person arrested in connection with an office under the National Accountability Ordinance, 1999 and Section 9(b) of the said Ordinance does not affect the jurisdiction of a High Court conferred upon it by the Constitution. The Constitutional Jurisdiction of a High Court is, however, an extraordinary jurisdiction meant to be exercised in extraordinary circumstances and not in run of the mill cases or as a matter of course.

(e) ………….

(f) Ordinarily bail is allowed to an accused person on the ground of delay only where the delay in the trial or the period of custody of the accused person is shocking, unconscionable or inordinate and not otherwise. The primary consideration for grant of bail on the ground of such delay is undue hardship and more often than not prima facie merits of the case against the accused person are also looked into before admitting him to bail on the ground of delay.

14. The petitioners have been specifically named and assigned specific role as perpetrators of the crime. The statement of the PWs recorded during the investigation can validly be taken into consideration at this stage. There is sufficient material to believe that the petitioners are linked with the offences and one of the charge is causing huge loss to public exchequer, therefore, it was not an ordinary offence. Reference can be made to the case of ‘‘Muhammad Yousaf Butt v. P.C. Abdul Lateef Shar and another’’ (2012 SCMR 1945) wherein the Hon’ble Supreme Court of Pakistan cancelled the bail with the following observations:

“We are cognizant of the law that once the High Court has exercised his discretion of granting bail to the Respondent No. 1, there has to be very special and overwhelming circumstances to cancel the bail. In the case of “Naseem Malik v. The State” (2004 SCMR 283), this Court has cancelled the bail on inter alia, the ground that the accused was specifically named and comprehensively described in the F.I.R. as one of the conspirators and perpetrators of the crime and it was noted that the statement of co-accused implicating the accused can validly be taken into consideration while deciding such matters. As discussed above, there is an apparent connection of the Respondent No. 1 in the commission of alleged crime in this case and there is sufficient material to connect him with the same. The High Court apparently has misread the record in this regard in granting of bail to Respondent No. 1. We, therefore, do not consider this case was such that Respondent No. 1 ought to have been granted bail.”

The petitioner Ahad Khan Cheema, at the relevant time, was a public servant. The petitioners played definite roles. The record suggested that they facilitated each other to obtain pecuniary advantage within the meaning of Section 9 of National Accountability Ordinance, 1999. Their acts were anything but not intended in the public interest. It was argued that no actual loss has been occasioned thereby to public-exchequer but record reflects otherwise. It goes without saying that white collar crimes of such a nature affect the whole society even though they may not have any immediate victim.

15. Considering in totality the facts and circumstances of the case and the allegation against the petitioners, the material available on record connects them with commission of alleged offence, therefore, they do not deserve to be enlarged on bail. Accordingly, we proceed to dismiss the petitions, being meritless.

However, it is clarified that the above observations are based on available record and tentative in nature, thus, the learned trial Court shall not be influenced thereby in any manner, at trial.

We may also observe that it is an old matter and still under adjudication, thus, the learned trial Court is directed to conclude the trial within four months after the receipt of copy of this order.

(Y.A.) Petitions dismissed

PLJ 2021 Lahore 87 (DB)

Present: Sardar Ahmed Naeem and Farooq Haider, JJ.

Mrs. SHAHINA SHAKEEL--Petitioner

versus

CHAIRMAN NAB, etc.--Respondents

W.P. Nos. 15993 & 17809 of 2020, decided on 7.4.2020.

Constitution of Pakistan, 1973--

----Art. 10, 13 & 199--National Accountability Ordinance, (XVIII of 1999), Ss. 2, 9(a), 24(a) & 31--Allotment of plots--Violation of exemption policy--Initiation of inquiry--Issuance of warrants of arrest--Beneficiary of loss to public exchequer--Implication of petitioner--Justification for custody of petitioner--Enquiry being conducted is to for which purpose examination and production of documents are necessary, is evident, therefore, call up notice cannot be declared as illegal, in particular, when petitioner has not challenged contents of call up notice or referred to some ambiguity--A well reasoned order was passed by Administrative Judge after satisfying its judicial conscience as there were reasonable grounds for believing that accusations or information were well founded justifying custody of petitioner--Exemption policy was stretched in favour of petitioner as reflected by statements of then Director General L.D.A. and Secretary to Chief Minister, recorded during enquiry as it was recommended that this case may not be quoted as precedent--Admittedly matter is 34 years old but National Accountability Ordinance, 1999 has retrospective effect and matter squarely falls within domain of National Accountability Bureau in light of Section 2 of National Accountability Ordinance, 1999--It is not denied by petitioner that warrants of arrest were issued by Chairman NAB and that he also authorized enquiry--Allegation against him is regarding period, when Mian Muhammad Nawaz Sharif was Chief Minister Punjab--He has acknowledged receipt of call up notice and has not pleaded that contents of said notice were ambiguous or incomplete--Administrative Judge Accountability Court extended remand of petitioner--Plea of his false involvement on account of malafide in retaliation to video clip or audio transcript at this stage does not appear to be well founded--No immunity from accountability is available to any person particularly when matter concerns commission of crime or fraud and question being of loss to public exchequer and misuse of public power, thus, question of violation of Article 13 of Constitution also could not arise--If someone hampers enquiry deliberately and with malice Section 31 of National Accountability Ordinance, 1999 has also taken care of such like situation--There is no law conferring immunity from criminal prosecution--Information laid before Judge Accountability Court was not false, which raised suspicion that petitioner committed offence within purview of National Accountability Ordinance, 1999 and, thus, his custody can neither be termed as illegal nor improper for purpose of maintaining a constitutional petition to declare his arrest as unlawful--Petition was dismissed. [Pp. 94, 95, 96 & 97] B, C, D, E & F

1994 SCMR 2142 ref.

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

----S. 18(b)--Scope of--Initiation of inquiry--An enquiry/investigation could be initiated either by Chairman or an officer of N.A.B. duly authorised by him, thus officer, so authorised shall enjoy all powers as are available to all officers incharge of a police station within meaning of Chapter-XIV of Criminal Procedure Code.

[P. 92] A

M/s. Aitzaz Ahsan, Shaukat Ali Javed, Shahid Saeed, Barrister Tayyab Jan and Malik Amjad Pervaiz, Advocates for Petitioners.

M/s. Syed Faisal Raza Bukhari, Muhammad Asim Mumtaz Special Prosecutors for NAB, Mr. Muhammad Ali Shahab, Deputy Prosecutor General with Muhammad Abid Hussain AD/IO, Muhammad Sultan Nazir, case officer and Khawar Ilyas, Director for State.

Date of hearing: 7.4.2020.

Judgment

Sardar Ahmed Naeem, J.--Through this single order, we intend to decide the above mentioned petitions as common questions of law and facts are involved therein.

1. Petitioner, namely, Shahina Shakeel filed Writ Petition No. 15993-2020, on 14.3.2020, against the respondents and prayed for the following relief:

(i) Accept the instant petition;

(ii) Declare that the conduct of Respondents No. 1,2,4,5 and 6 is contrary to the Directive/Policy Guidelines dated 08.10.2019 and including the warrant of arrest dated 12.03.2020 are illegal, without jurisdiction, arbitrary, mala fide and to set them aside accordingly;

(iii) Declare that the conduct of Respondent No. 3 refusing to provide reasons for the order dated 13.03.2020 on the fictitious grounds since it was the first order of remand and the learned Judge was not required to give any reasons under Section 24(d)NAO, 1999 is illegal without lawful authority and of no effect in law and to set it aside accordingly;

(iv) Declare the arrest and continued custody and detention of the detenue by the respondents/NAB as illegal and without lawful authority with the detenue being discharged and set at liberty forthwith;

(v) Declare that any actin contrary to the Directive/Policy Guidelines dated 08.10.2019 against the detenue would be discriminatory, illegal and ultra vires thereof;

(vi) Restrain the respondents/NAB from acting in violation of the Directive/Policy Guidelines dated 08.10.2019 or arresting the detenue in any other manner in an action with the allegations that are the subject matter of the instant petition; and

(vii) Grant such other relief to the petitioner as this Hon’ble Court may deem just and appropriate in the circumstances of the case”

1. The Court vide order dated 16.3.2020 requisitioned a reportpara-wise comments from the NAB authorities, submitted by the respondents.

4 Mir Shakil-ur-Rehman, petitioner filed Writ Petition No. 17809-2020 and sought the following declarations and directions:

(i) Accept the instant petition;

(ii) Declare the warrant of arrest dated 12.3.2020 as illegal, arbitrary, mala fide and to set it aside accordingly;

(iii) Declare that the conduct of Respondent No. 3 in refusing to provide reasons for the order dated 13.3.2020 (and orders issued subsequent thereto) as void, illegal, without lawful authority and of no effect in law and to set them aside accordingly;

(iv) Direct the release of the petitioner forthwith, on such conditions, as this Honourable Court may deem appropriate;

(v) Restrain the respondents/NAB from acting in violation of the Directive/Policy Guidelines dated 08.10.2019 or arresting the petitioner in any other manner in an action with the allegations that are the subject matter of the instant petition; and

(vi) Grant such other relief to the petitioner as this Honourable Court may deem just and appropriate in the circumstances of the case”

1. The facts as emerged from the record, in brief are that two complaints were received by the NAB on 26.12.2019 and 10.02.2020 with the allegation that the petitioner, namely, Mir Shakil-ur-Rehman having general power of attorney of Hakim Ali, Hadayat Ali and others was illegally allotted 54 plots measuring 01-Kanal each against 180-Kanals and 18-marlas of land acquired in Mauza Niaz Baig, Lahore by way of exemption. The allegation of undue favour to the petitioner in violation of the relevant laws/rules governing exemption with the connivance of the then Chief Minister Punjab, namely, Mian Muhammad Nawaz Sharif, was in addition to that.

2. The complaint verification was authorized by Respondent No. 1 vide concurrence dated 10.2.2020. The authority also authorized an enquiry against Mir Shakil-ur-Rehman, the petitioner and ex-Chief Minister Punjab Mian Muhammad Nawaz Sharif, officers/officials of LDA and others vide Letter No. 3-1(1)(7599)/L/MW-I/NAB/HQ/2020 dated 12.3.2020. The chairman NAB also issued warrants of arrest of the petitioner Mir Shakil-ur-Rehman, whereupon he was arrested on 12.3.2020 in execution of warrants of arrest. Hence, these petitions.

3. Learned counsel for the petitioners, inter-alia, contends:

(i) that it was thirty four years old matter, civil in nature does not fall within the ambit of NAO, 1999, (ii) The prosecution has not collected any incriminating evidence against the petitioner and there was no justification to arrest him;

(iii) that the exemption policy in respect of M.A Johar Town has been misconstrued and misinterpreted as the case of the petitioner was that he was entitled to 30 percent exemption in the shape of developed plots;

(iv) that the petitioner was summoned at the stage of complaint verification and was arrested on 12.3.2020 and that warrants of arrest by Respondent No. 1 were also issued on the same date without affording an opportunity of hearing to the petitioner, thus, smacks mala fide;

(v) that the remand is not to be granted mechanically without application of mind, rather, it is to be granted only in cases of real necessity and that the detention of any person for want of competent or valid remand order would amount to illegal confinement and the same can be a valid ground to release that person on bail;

(vi) that the petitioner was suffering from various ailments which cannot be attended to or addressed by the facilities currently available at the place of his custody;

(vii) that there is violation of SOP dated 08.10.2019 which has binding force and cannot be completely bypassed or ignored;

(viii) that arrest of the petitioner is a result of vindictiveness as an embarrassing video of Respondent No. 1 went viral. Geo News while broadcasting said news questioned that why authenticity of video should not be believed blindly;

(ix) that the Constitution of Islamic Republic of Pakistan, 1973 jealously guards the respect of a citizen provides through Article 4 thereof that to enjoy the protection of law and to be treated in accordance with law is an inalienable right of every citizen whereas, Article 9 of the Constitution protects every person against any deprivation of life/liberty save in accordance with law.

In support of his contentions, learned counsel for the petitioners, has placed his reliance on “Muhammad Hanif and 2 others versus National Accountability Bureau (NAB), Sindh through Director General, Sindh and another” (PLD 2007 Karachi 429), “Rehman versus The State” (2009 SCMR 181) and “Maj-Gen. (Retd). Mian Ghulam Jilani versus The Federal Government through the Secretary, Government of Pakistan, Interior Division, Islamabad” (PLD 1975 Lahore 65)”.

1. On the other hand, learned Special prosecutor for NAB contended that the complaint verification was authorized by Respondent No. 1 and enquiry was also authorized followed by warrants of arrest, thus, the arrest of the petitioner was neither improper nor illegal, in any manner; that the petitioner was not arrested in pursuit of any business transactions, rather, as beneficiary of the loss to the public exchequer and the said offence comes under the ambit of NAO, 1999; that the factual controversies have been raised which cannot be resolved in constitutional jurisdiction; that the PWs examined under Section 161, Cr.P.C., so far have implicated the petitioner; that the call up notice was perfectly legal and flawless; that the remand orders of the petitioner are based on cogent and solid reasons and the enquiry was still underway, thus, the petitions, both, are liable to be dismissed.

9. Before dilating upon merits of this case, it would be appropriate to examine the scope of National Accountability Ordinance, 1999 regarding enquiry, investigation and submission of report. A bare reading of Section 18 (b) of the Ordinance insists that an enquiry/investigation could be initiated either by the Chairman or an officer of the N.A.B. duly authorised by him, thus the officer, so authorised shall enjoy all the powers as are available to all officers incharge of a police station within the meaning of Chapter-XIV of the Criminal Procedure Code. This aspect is also confirmed by Section 18 (e) of the Ordinance. Whereas, Section 19 of the Ordinance provides additional powers of the officer conducting enquiry/investigation. It is manifest from Section 19 (c) of the Ordinance that authorised officer has powers to examine any person acquainted with facts of the case including the witness or an accused as well. However, when a notice is issued under this section, the person, so required to be examined, such notice should contain a specific reference of required information in respect of the offence alleged or any material which can suggest that the provision of Ordinance/Rule or Order made thereunder have been contravened. Keeping in view the above touchstone, we can examine whether call up notice served upon the petitioner, prima facie, serves its purpose. The impugned call up notice is reproduced hereunder:

“2. You are required to appear in person along with complete record/documents to record your plea pertaining to illegal Exemption of 54x plots in Block-H. Johar Town Phase-II/allotted to you in the year 1986, being the holder of General Power of Attorney on behalf of Hidayat Ali and Hikmat Ali, by the then Chief Minsiter, Punjab, Mian Muhammad Nawaz Sharif in violation of the relevant Laws/Rules before Ms. Nirmal Hasni, Deputy Director, complaint verification Cell NAB Complex, Thokar Niaz Baig, Lahore on 05th March, 2020 at 10:00 AM, positively, without fail”.

Grounds of arrest are also given hereunder:

(a. Accused Mir Shakeel-ur-Rehman in connivance with officers/officials of LDA, Ex-Chief Minister Mian Muhammad Nawaz Sharif and others illegally got exempted/allotted 54 x plots measuring 1x Kanal each situated at Canal Bank H-Block, M.A Johar Town, Lahore in sheer violation of provisions of Exemption Policy of 1986 formulated for M.A Johar Town, Lahore etc. against 180 x Kanals of land purportedly acquired in Mouza Niaz Baig, Lahore

(b. Accused got allotted/exempted these plots in sheer violation of Exemption Policy and illegally obtained all the plots of 1 x Kanal each despite the fact that as per Exemption Policy, maximum 15 x plots of 1 x Kanal denomination could be exempted/allotted but accused being in league with co-accused illegally got exempted 54x plots measuring 1 x kanal each including 2 x streets and in a compact block at prime location on canal.

(c. The accused in connivance with other co-accused persons illegally got included 2 x streets which were a thorough fare/state land in illegally exempted plots against the rules/regulation and law.

(d. The land so acquired was situated in 3 x different chunks/pockets but in violation of rules a compact block of land was obtained/allotted to the accused.

(e. In order to cover himself, the accused in connivance with other co-accused persons transferred the illegally exempted plots in the names of his wife as well as minor children and then got transferred the same in his own name.

(f. Furthermore, the accused in connivance with co-accused persons got allotted excess land at throw away price, therefore, accused obtained illegally pecuniary advantages through illegal means.

(g. The accused Mir Shakeel-ur-Rehman is an influential person and may tamper the prosecution record, so his arrest is necessary;

(h. Further said accused may abscond abroad, so to restrict his absecondance his arrest is necessary.

10. A perusal of the above notice and grounds of arrest reflects that enquiry being conducted is to for which purpose the examination and production of documents are necessary, is evident, therefore, call up notice cannot be declared as illegal, in particular, when the petitioner has not challenged the contents of call up notice or referred to some ambiguity.

11. Learned counsel for the petitioner has thrown a serious challenge to remand orders dated 13.3.2020 and 25.3.2020 by submitting that learned Accountability Court acted with excessive coercion and failed to exercise the authority vested in him. A review of the record demonstrates that application under Section 24(D) of National Accountability Ordinance, 1999 for obtaining 15-days physical remand of the petitioner was moved by Muhammad Abid Hussain, Assistant Director/ Investigating Officer of N.A.B. and the learned Administrative Judge (Accountability Court), Lahore, vide order dated 13.03.2020 allowed 12-days remand after hearing the parties and observed as under:

‘The contention by learned counsel for the accused that the accused is entitled to be discharged from the case. The perusal of record shows that Mir Shakeel-ur-Rehman accused has yet to explain the extra ordinary exemption in his favour by the then Chief Minister Punjab. Therefore, the contention by the learned counsel for the accused is premature, therefore, the physical remand of the petitioner was extended till 07.04.2020 through a detailed and well- reasoned order dated 25.03.2020.’

12. The petitioner is still under custody and on physical remand till 07.04.2020. The legal requirements of the grounds and substance of arrest were duly/admittedly conveyed to him as envisaged under Section 24 (a) of the National Accountability Ordinance, 1999 and Article 10 of the Constitution of Islamic Republic of Pakistan, 1973. A well reasoned order was passed by learned Administrative Judge after satisfying its judicial conscience as there were reasonable grounds for believing that accusations or information were well founded justifying custody of the petitioner. The argument of learned counsel for the petitioner that it was a transaction between the private parties and, thus, N.A.B. is precluded to interfere in the matter has no force as transaction between the parties is not the dispute rather exemption of 54 plots along with two streets is the subject matter of the enquiry. A review of the record demonstrates that the petitioner got General Power of Attorney from Hidayat Ali, Hikmat Ali and others on 22.05.1986, for making statement before the L.D.A. He filed the application for interim development of the land on 04.06.1986, summary was approved on 11.07.1986 and 54 kanals land along with area of two streets were exempted on 05.08.1986. Ultimately, the petitioner sold the said land to his wife/children on 29.09.1986 against consideration of Rs. 18,00,000/- and then the entire land was transferred in favour of the petitioner on 02.12.1998. At this juncture, it may be mentioned that petitioner being Mukhtar-e-Aam got exempted 54 kanals of land situated at M.A. Johar Town facing canal along with 02 streets which were merged/formed into a bigger plot of 58 kanals 18 marlas. It was asserted that the petitioner paid the outstanding price/dues of the excess land but it goes without saying that neither through exemption policy nor under any other law state land comprising upon the area of two streets/thoroughfare could be given to anyone, which also resulted into smashing/destroying the lay out plan/map of the scheme. Even the entitlement of the petitioner to have the excess land measuring 04 kanals 18 marlas is not borne out from the available record.

Another limb of the argument was misreading and misinterpretation of the exception policy. Suffice it to observe that question of misinterpretation of ‘exemption policy’ does not arise as the allegation against the petitioner is that he in connivance with holders of concerned public office, through illegal means i.e. in multiple violations of ‘Exemption Policy’ and law obtained valuable property including state land i.e. area of two streets/thoroughfare, which prima facie, attracts offence under Section 9(a) of the National Accountability Ordinance, 1999; furthermore, the above available record suggests that exemption policy was stretched in favour of the petitioner as reflected by the statements of the then Director General L.D.A. and Secretary to Chief Minister, recorded during the enquiry as it was recommended that this case may not be quoted as precedent. Admittedly the matter is 34 years old but the National Accountability Ordinance, 1999 has retrospective effect and the matter squarely falls within the domain of National Accountability Bureau in the light of Section 2 of the National Accountability Ordinance, 1999.

1. Another ground urged by the learned counsel for the petitioner was his ailment as he was suffering from different/multiple diseases. To augment his contention, learned counsel for the petitioner referred two Photostat copies of certificate of Acupuncturist, namely Hellen Attwool and Dr. Nazar Qureshi. The certificates, both, indicate that petitioner was patient of “Tinnitus” and was advised M.R.I. for the treatment of kidney pain and headache. He was also referred to consultant orthopaedic surgeon for management of his disease. A similar submission was made by the learned counsel when Writ Petition No. 15993-2020 was taken up by the Court and on 16.03.2020, Special Prosecutor, NAB made the following statement:

“… Learned Prosecutor submits that the detenu shall be provided immediate medical checkup, daily medical checkup, CPAP machine (for sleep Apnea), medicines, home food, clothes, newspapers, books, writing materials and will be permitted to see his blood related relatives, his counsels (who are signatory of the power of attorney) and Dr. Azmat, his personal physician whenever so required. However, the request of the petitioner will be entertained in accordance with law”.

Learned counsel for the petitioners has not appended any material on record that the above diseases are hazardous to his life.

1. Learned counsel for the petitioners seeking shelter of Memo No. 3-5/COD/NHQ/19/(48-P/S) dated 08.10.2019 on the subject “Procedure for summoning of business men in NAB proceedings/policy guidelines” contended that the petitioner was never delivered a questionnaire and the petitioner could not have been examined in disregard of the said policy. Assuming that the petitioner is a businessman but the matter under enquiry is not regarding a business or business transaction, thus the petitioner could not make out a case to avail the benefit of said policy.

2. It was argued that the petitioner was involved in this case by Respondent No. 1 as the petitioner being head of Jang/Geo Group continued factual reporting including audio/video tapes against the said respondent. However, it was a mere assertion and no admissible material was available on record in support of such assertion.

16. It is not denied by the petitioner that the warrants of arrest were issued by Chairman NAB and that he also authorized enquiry on 12.3.2020. The allegation against him is regarding the period, when Mian Muhammad Nawaz Sharif was Chief Minister Punjab. He has acknowledged the receipt of call up notice and has not pleaded that contents of said notice were ambiguous or incomplete. The learned Administrative Judge Accountability Court extended remand of the petitioner. The plea of his false involvement on account of malafide in retaliation to video clip or audio transcript at this stage does not appear to be well founded. Under Article 129 (e) of Qanun-e-Shahadat, there is presumption that official acts have been regularly performed i.e. with due regard to the relevant formalities and within the relevant powers and that a conclusion of excess and irregularity is, therefore, not to be lightly reached. No immunity from accountability is available to any person particularly when the matter concerns the commission of crime or fraud and the question being of loss to public exchequer and misuse of public power, thus, question of violation of Article 13 of the Constitution also could not arise. If someone hampers the enquiry deliberately and with malice Section 31 of National Accountability Ordinance, 1999 has also taken care of such like situation. There is no law conferring immunity from criminal prosecution. The information laid before the Judge Accountability Court was not false, which raised suspicion that petitioner committed the offence within the purview of National Accountability Ordinance, 1999 and, thus, his custody can neither be termed as illegal nor improper for the purpose of maintaining a constitutional petition to declare his arrest as unlawful. Perusal of the case laws cited by learned counsel for the petitioners reveals that the facts and circumstances of the said cases were not identical to the facts and circumstances of the case in hand and are distinguishable and not applicable to the facts and circumstances of the instant case. In such like cases regarding exercise of writ jurisdiction, the apex Court in case titled “Birg. (Retd.) Imtiaz Ahmad versus Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others” (1994 SCMR 2142), in para 12 of page 2153 observed as under:

“12. The power under Article 199 of the Constitution is the power of judicial review. That power “is a great weapon in the hands of Judges, but the Judges must observe the Constitutional limits set by our parliamentary system on their exercise of this beneficial power, namely, the separation of powers between the Parliament, the Executive and the Courts”. (Lord Scarman in Nottinghamshire C.C. v. Secretary of State (1986) (All ER 199, 204). Judicial review must, therefore, remain strictly judicial and in its exercise, Judges must take care not to intrude upon the domain of the other branches of Government. As was succinctly put by Hamoodur Rehman, J. (as he then was) in Mir Abdul Baqi Baluch v. The Government of Pakistan (PLD 1968 SC 313, 324), under a Constitutional system which provides for judicial review of executive actions:

“It is, in my opinion, a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of judicial authority reviewing executive actions to sit on appeal over the executive or to substitute the discretion of the Court for that of the administrative agency”.

Seeking guidance from the observations of their lordships and respectfully following the same, we proceed to dismiss the above petitions, being meritless and premature.

1. Before we part with this judgment, it may be mentioned that as the matter is still being enquired and at its initial stage, however, the petitioner may avail the remedy for his release on bail at appropriate stage, if so advised.

2. It is also clarified that the observations made above are based on available material and tentative in nature, thus, the learned trial Court shall not be influenced thereby in any manner, at trial.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 98

Present:Muhammad Qasim Khan, J.

MUHAMMAD MUMTAZ AKHTAR--Petitioner

versus

ADDITIONAL SESSIONS JUDGE, etc.--Respondents

W.P. No. 233516 of 2018, decided on 7.3.2019.

Microfinance Institution Ordinance, 2001--

----S. 3(2)(3)--Legal position--Micro Finance Institutions cannot deemed to be a banking company--Jurisdiction--All microfinance institutions have been specifically taken out of pail of other banking laws by making legal position clear that no such institutions would be considered as banking company--Banking Court has no jurisdiction to deal with any matter other than business of Scheduled Bank, and definitely microfinance institutions are not included in list of Scheduled Banks--It becomes crystal clear that remedy before banking Court would be available to exclusion of all other forums only when Financial Institutions (Recovery of Finances) Ordinance, 2001 would attract, whereas, in terms of Section 3(2) of Microfinance Institutions Ordinance, 2001, financial institutions shall not apply to microfinance institutions.

[Pp. 100 & 101] A, B & C

PLJ 2013 Lahore 606 and 2017 SCMR 1218.

Microfinance Institution Ordinance, 2001--

----S. 3(2)--Criminal Procedure Code, (V of 1898), Ss. 22-A/22-B--Repayment of loan--Issuance of cheque--Allegation of dishonesty--Application of criminal and general laws--Jurisdiction--Challenge to--NRSP Microfinance Bank Limited being only a microfinance institution and not being included in list of Scheduled Banks, cannot take immunity from applicability of general law i.e. Criminal Procedure Code--Therefore, both above referred citations do not advance case of petitioner--Microfinance institutions cannot be termed as financial institution within contemplation of Financial Institutions (Recovery of Finances) Ordinance, 2001, to say that its matter could only be tried by Banking Court--Thus, Code of Criminal Procedure being fully applicable, application filed under Section 22-A/22-B Cr.P.C. on behalf of microfinance institution was fully competent and impugned orders passed by learned Ex-officio Justice of Peace do not suffer from any jurisdictional or legal error.

[P. 102] D & E

Mian Shahid Ali Shakir, Advocate for petitioner.

Mr. Zeeshan Ali Khurshid, Advocate for Respondent No. 3.

Mr. Zafar Hussain Ahmad, Additional Advocate General for State.

Date of hearing: 7.3.2019.

Order

This single order is meant to decide three connected matters i.e. (i) Writ Petition No. 233516 of 2018 “Muhammad Mumtaz Akhtar versus ASJ, etc., (ii) Writ Petition No. 233530 of 2018 “Muhammad Nawaz Akhtar versus ASJ, etc.”, and (iii) Writ Petition No. 233532 of 2018 “Muhammad Sarfraz Akhtar versus ASJ, etc. as all these have arisen out of similar facts and circumstances.

1. Briefly the facts of the case are that Abdul Qadir (Respondent No. 3 in all these three petitions) in his capacity as Manager NRSP (National Rural Support Program) Microfinance Bank Shorkot Road, Toba Tek Singh filed separate applications under Section 22-A Cr.P.C., to seek direction for registration of criminal cases against all the three writ petitioners, with the allegation of dishonestly issuing a cheques pleading that the same had been issued by the petitioners towards repayment of loan. The learned Additional Sessions Judge/Ex-officio Justice of Peace vide three separate orders of even date i.e. 29.08.2018 directed the SHO to record statement of the applicant/Respondent No. 3 and proceed further in accordance with law. These orders have been challenged by the respective petitioners through their independent writ petitions.

2. The main contention of learned counsel for the petitioners before this Court is that the petitioner (Muhammad Mumtaz Akhtar) had obtained loan from NRSP (National Rural Support Program) Microfinance Bank, which is established with a purpose to provide Micro Credit, therefore, in case of a dispute between NRSP Microfinance Bank and its customers, criminal proceedings could not be initiated and the only course available to the said bank was to file a complaint before the Banking Court. In support of his contentions the learned counsel placed reliance on the case “Syed Mushahid Shah and others versus Federal Investment Agency and others” (2017 SCMR 1218) and “Muhammad Asif Nawaz versus ASJ, etc” (PLJ 2013 Lahore 606). The learned counsel concluded his arguments by submitting that the applications filed by Respondent No. 3 before the learned Additional Sessions Judge/Ex-officio Justice of Peace were neither maintainable nor could be entertained and thus the impugned orders are not sustainable in the eye of law.

3. On the other-hand, learned law officer as well as the learned counsel for the respondent-Bank have opposed these writ petitions by arguing that per force of Section 3 of the Microfinance Ordinance, the Banking Companies Ordinance and any other law for the time being in force relating to banking companies or financial institutions shall not apply to microfinance institutions, as microfinance institutions cannot be deemed to be a banking company for the purposes of said ordinance, therefore, no other remedy under the Banking Laws was available and there was no bar for the respondent Bank to have recourse to the learned Ex-officio Justice of Peace and the orders impugned herein, are perfectly in accordance with law.

4. I have considered the arguments of learned counsel for the parties at length and perused the record.

5. Before proceeding further, I would like to reproduce Section 3 (2) of the Microfinance Institutions Ordinance, 2001:

“Save as otherwise provided in this Ordinance, the Banking Companies Ordinance and any other law for the time being in force relating to Banking Companies or financial institutions shall not apply to microfinance institutions licensed under this ordinance and microfinance institution shall not be deemed to be a Banking company for the purpose of the said Ordinance, the State Bank of Pakistan Act, 1956 (XXXIII of 1956), or any other law for the time being in force relating to Banking companies.”

As shall be seen from the above reproduced provision of Microfinance Institutions Ordinance, 2001, the same in fact is an ouster clause and by specific insertion of said Section 3 sub- section (3) in the Ordinance ibid, all the microfinance institutions have been specifically taken out of the pail of other banking laws by making the legal position clear that no such institutions would be considered as banking company. On this legal proposition that Court in the case “NRSP Microfinance Bank Limited versus The Additional Sessions Judge and two others” Writ Petition No. 7964 of 2018-BWP has held that Banking Court has no jurisdiction to deal with any matter other than the business of Scheduled Bank, and definitely the microfinance institutions are not included in the list of Scheduled Banks.

7. As regards the contention of learned counsel for the petitioners with reference to case law i.e. “Syed Mushahid Shah and others versus Federal Investment Agency and others” (2017 SCMR 1218) and “Muhammad Asif Nawaz versus ASJ, etc” (PLJ 2013 Lahore 606), there can be no second opinion that in the cited cases, the Hon’ble Supreme Court of Pakistan has held that whenever an offence is committed by a customer of a financial institution within the contemplation of the Financial Institutions (Recovery of Finances) Ordinance, 2001, it could only be tried by the Banking Court constituted thereunder and no other forum. On careful perusal of the judgment of the apex Court it becomes crystal clear that remedy before the banking Court would be available to the exclusion of all other forums only when the Financial Institutions (Recovery of Finances) Ordinance, 2001 would attract, whereas, in terms of Section 3(2) of the Microfinance Institutions Ordinance, 2001, financial institutions shall not apply to microfinance institutions.

1. Similarly, in the case “Muhammad Asif Nawaz versus Additional Sessions Judge, etc.” (PLJ 2013 Lahore 606), the matter with regard to an order for registration of case passed by learned Ex-officio Justice of Peace on an application filed on behalf of Faysal Bank Limited alleging dishonour of cheque issued by its customer towards payment of loan, had come under consideration and this Court held:

“6. Section 20 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 is the provision relating to certain offences and its sub-section (4) deals with dishonest issuance of a cheque towards repayment of a finance or fulfillment of an obligation which is dishonoured on presentation. The punishment of said offence has been provided as one year or with fine or with both. Therefore, it becomes quite obvious that in the matter, like the one in hand, the jurisdiction only lies with the Banking Court established under the Financial Institutions (Recovery of Finances) Ordinance, 2001 and not before any other Court, until and unless the same is provided by law, by which the financial institution is established.”

It is again clear that jurisdiction with the Banking Court established under the Financial Institutions (Recovery of Finances) Ordinance, 2001 would lie only when the bank/company is covered by the Financial Institutions (Recovery of Finances) Ordinance, 2001, whereas, in the instant case the NRSP Microfinance Bank Limited being only a microfinance institution and not being included in the list of Scheduled Banks, cannot take immunity from applicability of general law i.e. Criminal Procedure Code. Therefore, both the above referred citations do not advance the case of the petitioner.

9. In view of the above, this Court has no hesitation to hold that microfinance institutions cannot be termed as financial institution within the contemplation of the Financial Institutions (Recovery of Finances) Ordinance, 2001, to say that its matter could only be tried by the Banking Court. Thus, Code of Criminal Procedure being fully applicable, the application filed under Section 22-A/22-B Cr.P.C. on behalf of the microfinance institution was fully competent and the impugned orders passed by learned Ex-officio Justice of Peace do not suffer from any jurisdictional or legal error. These writ petitions therefore fail and are accordingly dismissed.

(M.M.R.) Petition Dismissed

PLJ 2021 Lahore 102 (DB) [Multan Bench, Multan]

Present: Muzamil Akhtar Shabir and Abid Aziz Sheikh, JJ.

ZOHAIB MODEL INDUSTRIES (PVT.) LIMITED and 2 others--Appellants

versus

SUMMIT BANK LIMITED--Respondent

R.F.A. No. 123 of 2018, heard on 14.11.2019.

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

----S. 22--Suit for recovery of amount was decreed--Application for leave to defend--Dismissed--Challenge to--It is observed that availing of finance facility is admitted between parties which is also supported by finance documents executed by appellants in favour of respondent bank which are available on record--Entries in statements of account clearly show that appellants have been availing said facility for about three years and markup has been charged--Consequently claim of appellants that agreement was for one year renewable on year to year basis and was not get renewed with effect from year 2010 is not supported by documents available on record and therefore said argument is declined--Besides application for leave to defend filed by appellants failed to raise and substantial question of law or fact requiring grant of leave to defend, therefore, same was rightly dismissed by Banking Court-- Banking Court after taking into consideration principal and markup accounts up to expiry date wherein markup has been charged and deducting markup charged thereafter has rightly decreed suit and appellants have failed to point of any discrepancy in said judgment, consequently there is no ground to interfere in judgment and decree passed by Banking Court which is upheld--Appeal was dismissed. [Pp. 104 & 105] A & B

Mr. Muhammad Aslam Siddiqui, Advocate for Appellants.

Malik Sajjad Haider Maitla, Advocate for Respondent/bank.

Date of hearing: 14.11.2019.

Judgment

Muzamil Akhtar Shabir, J.--Through this Regular First Appeal, filed under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (“Ordinance”), the appellants have called in question the judgment and decree dated 11.12.2017 passed by Banking Court-III, Multan, whereby suit for recovery of Rs. 57,632,149.42 filed by the respondent bank was decreed jointly and severally against the appellants to the extent of Rs. 43,138,583.14 with costs and cost of funds from date of default till its realization.

1. Learned counsel for the appellants has argued that the grounds raised by the appellants have not been properly addressed by’ the Banking Court, therefore, the impugned judgment and decree is not sustainable in the eye of law having failed to determine the real controversy in issue.

2. On the other hand, learned counsel appearing on behalf of the respondent/bank has supported the impugned judgment and decree by stating that the same has validly been passed against the appellants.

3. Heard. Record perused.

4. The respondent bank filed a suit for recovery of Rs. 57,632,149.42 against the appellants which was contested by the appellants on various legal and factual grounds, however, the same was decreed against them by dismissing their application for leave to defend. It is contended by the appellants that although initially the running finance facility was availed by them vide agreement dated 28.06.2008 for one year which was renewed in the year 2009 for another year and the appellants did not get it renewed thereafter, therefore, the expiry dated was 30.06.2010 whereas the respondent bank has continued to charge the markup till 27.06.2011 which is beyond the expiry period and consequently not sustainable. Besides, no transaction was made by the appellants in the account beyond 30.06.2010 and the entries thereafter in the statements of account are without any legal justification.

6. It is observed that availing of finance facility is admitted between the parties which is also supported by finance documents executed by the appellants in favour of the respondent bank which are available on the record. The only grievance of the appellants is that the agreement of finance was renewable on year to year basis and after initial agreement executed in the year 2008 and the same was only renewed once for the year 2009 with expiry date of 30.06.2010 and no further renewal or transaction was made in the accounts, therefore, claim of the respondent relating to period beyond 30.06.2010 is not sustainable. This assertion is negated by the learned counsel for the respondent bank by referring to finance agreement and statements of account. Clause 4 of the agreement of finance dated 28.06.2008 shows expiry date as 27.06.2011 which means that finance was availed for a period of three years and not for a period of one year as claimed by the appellants. Even the appellants have made various transactions in the running finance account through debit and credit entries which are reflected in the statements of account supported by details of the same. The appellants have failed to point out any entry in the statements of account that is incorrect or not supported by any document. It is not the claim of the appellants that any amount deposited by them is not reflected in the statements of account. The entries in statements of account clearly show that the appellants have been availing the said facility for about three years and markup has been charged up till 15.06.2011, a few days prior to the expiry date i.e. 27.06.2011. Consequently the claim of the appellants that the agreement was for one year renewable on year to year basis and was not get renewed with effect from the year 2010 is not supported by documents available on the record and therefore the said argument is declined. Besides the application for leave to defend filed by the appellants failed to raise and substantial question of law or fact requiring grant of leave to defend, therefore, the same was rightly dismissed by the Banking Court. The Banking Court after taking into consideration the principal and markup accounts up to expiry date i.e. 27.06.2011 wherein markup has been charged till 15.06.2011 and deducting the markup charged thereafter has rightly decreed the suit and appellants have failed to point of any discrepancy in the said judgment, consequently there is no

ground to interfere in the judgment and decree passed by the Banking Court which is upheld.

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

(Y.A.) Appeal dismissed

PLJ 2021 Lahore 105

Present: Muhammad Farrukh Irfan Khan, J.

NASIR MEHMOOD RAZA and another--Petitioners

versus

SECRETARY PROSECUTION, PUBLIC PROSECUTION DEPARTMENT, GOVERNMENT OF PUNJAB and 4 others--Respondents

W.P. No. 22706 of 2017, heard on 21.1.2019.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Appointment as ADPP--With holding of promotions as District Public Prosecutor--Recommendations of departmental promotion committee--Challenge to--Deprivation right of promotions--Unblemished service record--No adverse remarks--Entitlement of promotion--Maintainability--Direction to--Instant writ petition is maintainable--Objection qua maintainability of this writ petition raised by Law Officer is overruled--Perusal of both deferment letters shows that cases of promotion of petitioners were deferred on question of their “integrity” and “reputation”--It is also evident that while making such observations competent Authority has not given due consideration to ACRs of petitioners relating to said period--In Part V he has been reported “Very Good” against “Overall Grading”--In part-V(b) he has been reported “Honest”--Countersigning officer has agreed with evaluation and remarks of Reporting Officer--Same is position in his ACR for said period his integrity, work and conduct was found to be satisfactory by Reporting Officer and countersigning officer--Record of PERs of petitioners this Court is of opinion that there existed no valid and legal ground or reason to defer case of petitioners for promotion--I am of view that case of present petitioners is on better footings as compared to case of petitioner in cited case--In said case petitioner was awarded minor penalty of withholding of increment for one year and his appeal was also rejected by Appellate Authority--Petitioners are thus entitled to same relief as has been granted to similarly placed employee of same department--High Court is inclined to hold that cases of petitioners were deferred for promotion without any lawful justification, therefore, they are entitled to be re-considered for promotion--This petition is allowed and respondents are directed to consider case of petitioners for promotion from date their deferment for promotion in next meeting of PSB to be convened within a month from date of receipt of copy of this order.

[Pp. 109, 110 & 111] A, B, C, D, E & F

2007 SCMR 682 and 2010 PLC C(S) 946.

Mr. M. Yafis Naveed Hashmi, Advocate for Petitioners.

Mr. Akhtar Javed, Additional Advocate General, Punjab, Mr. Prince Khalid, Law Officer, Prosecutor General, Punjab and Mr. Adnan Ali, Law Officer, Public Prosecution Department, Punjab, for Respondents.

Date of hearing: 21.1.2019.

Judgment

Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have assailed the decisions of the Provincial Selection Board-I (“PSB-I)” dated 24.3.2014 and 29.9.2016 whereby their promotions to the posts of District Public Prosecutor (B.S.I9) have been deferred.

1. Brief facts of the case are that on the recommendations of the Punjab Public Service Commission both the petitioners were appointed in Government of Punjab, Law & Parliamentary Affairs Department as Assistant District Attorney (B.S.I6) on 16.5.1996. Thereafter on recommendations of the Departmental Promotion Committee they were promoted as Deputy District Attorney (B.S.17) on regular basis, vide notification dated 3.4.2004. It is asserted that in the year 2006, Punjab Public Prosecution Department was established by virtue of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (III of 2006). After establishment of the Punjab Public Prosecution Department the petitioners were inducted/transferred to the newly established department as Deputy District Public Prosecutor (B.S.I8), vide order dated 2.3.2007. Both the petitioners performed duties as District Public Prosecutor for more than one year, vide order dated 30.5.2014 and 16.12.2013, passed by Government of the Punjab, Public Prosecution Department. It is alleged that case of both the petitioners was considered for promotion for the post of District Public Prosecutor (B.S.I9) in the meeting of the PSB-I, held on 24.3.2014 but their case was deferred and persons juniors to them were promoted. The case of the petitioners was again considered for promotion in meeting of PSB-I, held on 29.9.2016 but again deferred without any legal justification. Hence, the instant petition.

2. Learned counsel for the petitioners contended that the petitioners have been deprived of their right of promotion without any lawful reason or ground twice; that both the decisions of the PSB-I are not warranted under the law and Rules on the subject; that the petitioners enjoy unblemished service record; that they have no adverse PER throughout their service that the observations of the PSB-I are based on surmises and conjectures; that the Performance Evaluation Reports (PERs) were not taken into consideration while deferring promotion of the petitioners; that PERs of the petitioners for the relevant period i.e. 2014 and 2015 were recorded good by the Reporting Officer; that performance of the petitioners has been assessed upto the mark; that both the petitioners have been reported to be “honest” by the Reporting Officer and the Counter-singing Officer; that the PSB-I has failed to apply the parameters and guidelines given by the Superior Courts of the country for consideration of promotion cases of the petitioners; that one Muhammad Aftab Zafar, who was deferred for promotion earlier filed W.P.No. 17377/2016, which was allowed by this Court, vide order dated 4:4.2017; that case of the petitioners is on better footing as compared to the said Muhammad Aftab Zafar, who was awarded minor penalty of withholding of increment for a period of one year and his appeal against the said punishment was rejected; that the petitioners are entitled to the same relief which has already been granted to similarly placed employee; and that the decisions of the PSB-I being illegal and unlawful may be declared as such. In support of his arguments, learned counsel has relied upon the cases of Syed Iftikhar Hussain Shah and others v. Government of Pakistan and others (1998 SCMR 2009), Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185) and Government of Punjab through Secretary Education, Civil Secretariat, Lahore and others v. Sameena Parveen (2009 SCMR 01).

3. Conversely, learned counsel for the respondent-Department as the learned Addl. A.G. has opposed the instant petition by arguing that the instant petition is not maintainable due to the bar as contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 as the matter agitated in this petition relates to the terms and conditions of their service, which exclusively falls within the domain of the Punjab Service Tribunal; that promotion cannot be claimed as a matter of right; that in meeting of PSB-I it was brought to notice that during postings of the petitioners at various stations their reputation remained questionable; that the Administrative Department was asked to monitor the performance of the petitioners for six months and file a special report about their integrity/ reputation; that on the basis of the special report their cases for promotion were deferred in the meeting held on 29.9.2016, the Administrative Department has again been asked to monitor performance of the officers for one year and submit special reportqua their integrity/reputation; that the PSB-1 has lawfully deferred the cases of promotion of the petitioners as per Promotion Policy, 2010; and that cases of promotion of the petitioners will be considered after receiving special reports of one year performance.

4. Arguments heard. Record perused.

5. The question of maintainability of the instant petition is taken up first. The matter agitated before this Court relates to the determination of fitness of the petitioners for promotion. In the case of Secretary Establishment Division. Government of Pakistan. Islamabad v. Aftab Ahmed Manika and others (2015 SCMR 1006) the Hon’ble Supreme court of Pakistan has observed as under:

“Section 4 of the Federal Service Tribunal Act, 1973 provides for appeals to the Tribunal by a civil servant aggrieved of any order regarding terms and conditions of his service. Clause (b) of subsection (1) of Section 4 of the Federal Service Tribunal Act expressly bars the Tribunal from entertaining appeal against the decision of a departmental Authority determining the fitness or otherwise of a person to be promoted to a higher grade. The Tribunal has thus no jurisdiction to examine whether or not a civil servant is fit for promotion to a higher grade. Under Clause (2) of Article 212 of the Constitution the jurisdiction of the Court is ousted only over maters falling within the exclusive jurisdiction of the Tribunal established under Clause (1) of Article 212. As the determination of fitness of a civil servant far promotion has been excluded from jurisdiction of the Tribunal, the ouster Clause (2) of Article 212 therefore does not extend to such matters.”

In the present case, the matter of promotion of the petitioners has been deferred by the competent authority twice. The petitioners have alleged discrimination and violation of settled principles of law in the matters of fitness for promotion, therefore, this Court has got jurisdiction to interfere in this matter. Reliance in this regard is placed on the case of Muhammad Iabal and others v. Executive District Officer (Revenue), Lodhran and another (2007 SCMR 682). On the strength of the dictum laid down by the August Supreme Court of Pakistan I am of the considered view that the instant writ petition is maintainable. The objectionqua maintainability of this writ petition raised by the learned Law Officer is overruled.

7. While adverting to the grievance raised in this petition qua deferment of the petitioners for promotion twice I have perused the impugned letters dated 16.4.2014 and 27.10.2016, issued by Government of the Punjab, Services & General Administration Department. Through letter dated 16.4.2014 while approving the proposals and recommendations of PSB-I the competent Authority has rendered the following decision in the matter of promotion of both the petitioners:

“The Board was apprised that there were certain questions about conduct of the officer. Therefore, after detailed deliberations the -Board was of unanimous opinion that the reputation of the officer remained questionable during his various postings creating doubts regarding his suitability for promotion to higher scale.

Keeping in view the aforementioned facts, overall service profile and after giving due consideration to the nature of the duties, competence of the officer, reputation and other qualities, the Board recommended that the officer may be deferred for appointment to the post of District Public Prosecutor (BS-19) on acting charge basis. The Board further desired that the Administrative Department may watch/monitor performance of the officer for six months and initiate a special report about the integrity/reputation of the officer for consideration his case by the PSB-I.”

The competent Authority through letter dated 27.10.2016 again deferred the case of the petitioners for promotion with the following observations/decision:

“Deferred for promotion to the post of District Public Prosecutor (BS-19) on regular basis. The Board further desired that the Administrative Department may watch/monitor performance of the officer for one year and initiate a special report about the integrity/reputation of the officer for consideration of his case by the PSB-I.”

In the case of Syed Iftikhar Hussain Shah and others v. Government of Pakistan and others (1998 SCMR 2009) the Hon’ble Supreme Court of Pakistan while dealing with the matter of promotion has made the following observations:

“It was incumbent upon the Departmental Promotion Committee to have considered the annual confidential reports and other material as well as the merits of each candidate while deciding to promote or ignore an official.”

Perusal of both the deferment letters shows that cases of promotion of the petitioners were deferred on the question of their “integrity” and “reputation”. It is also evident that while making such observations the competent Authority has not given due consideration to the ACRs of the petitioners relating to the said period. This act of the Authority was against the dictum laid down by the August Supreme Court of Pakistan in the case of Syed Iftikhar Hussain Shah and others v. Government of Pakistan and others (supra). Even otherwise the observations of the competent Authority in both the decisions/letters are found to be contrary to the evaluation and remarks of the Reporting Officer made in the Performance Evaluation Reports (PERs/ACRs) of the petitioners. In the ACR of petitioner No. 1/Nasir Mahmood for the period from 25.3.2014 to 22.6.2014 in Part-II regarding Performance Assessment the -Reporting Officer has assessed him in the following words:

“He has very efficiently performed his duties”

In Part III of the said ACR he has throughout been rated in “A”. In Part-IV (pen-picture) he earned the following remarks:

“Work, conduct and integrity remained satisfactory, always well prepared, well performed before the Courts. He is fit to be promoted on its own turn.”

In Part V he has been reported “Very Good” against “Overall Grading”. In part-V(b) he has been reported “Honest”. The countersigning officer has agreed with the evaluation and remarks of the Reporting Officer. Same is the position in his ACR for the period from 23.6.2014 to 24.9.2014. In the ACR for the period 1.1.2014 to 10.6.2014 his integrity, work and conduct was found to be satisfactory by the Reporting Officer and the countersigning officer. In the ACR for the period 23.6.2014 to 31.12.2014 he was rated in “A”. In the column of “Integrity” he was found to be “Honest”. ACRs of petitioner No. 1 for the period from 1.1.2015 to 21.4.2015 and 22.4.2015 to 31.12.2015 are also rated “very good”. His “work”, “conduct” and “integrity” have been found good. He has not earned any “adverse” or even “advisory remarks” from the Reporting Officer. Same is the position of petitioner No. 2/Zulfiqar Ali Mujahid. He has learned good ACRs during the period from, 1.1.2014 to 22.6.2014, 25.3.2014 to 22.6.2014, 23.6.2014 to 24.9.2014, 23.6.2014 to 31.12.2014, 1.1,2015 to 15.6.2015 and 16.6.2015 to 31.12.2015. Keeping in view the record of PERs of the petitioners this Court is of the opinion that there existed no valid and legal ground or reason to defer the case of the petitioners for promotion. The order of this Court dated 4.4.2017 passed in W.P. No. 17377/2016 titled Muhammad Aftab Zafar v. Secretary Prosecution, Public Prosecution Departments Govt. of Punjab Lahore etc. has also been relied upon by learned counsel for the petitioners in support of their case by arguing that case of the petitioners is identical to the case of the petitioners in the cited case. In the cited case the writ petition of the petitioners was disposed of with a direction to the respondents to place their case before the PSB for reconsideration and passing appropriate orders. I have perused the order dated 4.4.2017 passed in the cited case. I am of the view that case of the present petitioners is on better footings as compared to the case of the petitioner in the cited case. In the said case the petitioner was awarded minor penalty of withholding of increment for one year and his appeal was also rejected by the Appellate Authority. The petitioners are thus entitled to the same relief as has been granted to the similarly placed employee of the same department. In the circumstances ‘this Court is inclined to hold that cases of the petitioners were deferred for promotion without any lawful justification, therefore, they are entitled to be re-considered for promotion. Reliance in this regard is placed on the case of Director General Intelligence Bureau, Islamabad and others v. Amir Mujahid Khan and others (2010 PLC (C.S.) 946).

8. In the light of above, this petition is allowed and the respondents are directed to consider the case of the petitioners for promotion from the date of their deferment for promotion in the next meeting of PSB to be convened within a month from the date of receipt of copy of this order.

(M.M.R.) Petition Allowed

PLJ 2021 Lahore 112 (DB) [Multan Bench Multan]

Present: Anwaarul Haq Pannun and Sadiq Mahmud Khurrram, JJ.

MANZOOR AHMAD--Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through Chairman, Islamabad and 2 others--Respondents

W.P. No. 2461 of 2019, decided on 19.3.2019.

Constitution of Pakistan, 1973--

----Art. 199--National Accountability Ordinance, (XVIII of 1999), S. 9--Post-arrest bail of grant of--Allegations of misuse of authority and corrupt practice--Grant of extension of time for payment--Completion of evidence--Determination--Initiation of inquiry--Anonymous complaint--Violation of rules--Rule of consistency--It was case of prosecution/NAB authorities that work was no completed within stipulated period which was extended for one year and amount at rate of 5% for execution of work was paid to contractors instead of imposing penalty--It is worth noticing that inquiry was initiated by NAB authorities on anonymous complain-- Project, otherwise, was completed in all respects within extended time by competent authority--Petitioners were not alleged to have gained financial benefit;’ from amount paid from national exchequer and they were only blamed with misuse of authority and violating rules on subject--Amount of loss calculated allegedly paid to contractor was fully secured and could be adjusted from amount already deposited--It was observed that case against accused was based on entirely documentary evidence which was in possession of prosecution and there was no possibility of tempering of same, hence bail was granted to accused/petitioner--Rule of consistency is also applicable in this case--We feel that case of petitioners is identical to case of co-accused, therefore, they are entitled to equal treatment in eyes of law, following rule of consistency--Petition was allowed. [Pp. 115 & 116] A, B & C

2002 SCMR 282 and 2008 SCMR 173 ref.

M/s. Abdul Qayyum Rao, Amjad Mushtaq and Ehsan Ali Gill, Advocates for Petitioner.

Mr. Muhammad Akram Rao, Special Prosecutor NAB, Rao Abdul Khaliq, ADI/NAB.

Date of hearing: 19.3.2019.

Order

Through this single order, we intend to decide Writ Petition No 2461 of 2019 (Manzoor Ahmad vs. NAB, etc. Writ Petition No. 2376 of 2019 (Riaz Hussain son of Naseer Ahmad (Patwari) vs. NAB, etc.), Writ Petition No. 2466 of 2019 (Riaz Hussain vs. NAB, etc.) and Writ Petition 2218 of 2019 (Gulzar Hussain vs. NAB, etc.), as all these petitions have arisen out of the same case being investigated by NAB authorities on the charges of misuse of authority, corrupt practices and financial loss to the public exchequer in connection with Multan Metro Product. All the petitioners have prayed for grant of post arrest bail who were arrested by NAB authorities and presently are confined in jail.

1. Allegation against petitioner Manzoor Ahmad (W.P No. 2461 of 2019) is that in the capacity of Sub-Divisional Officer, Multan Development Authority (MDA) of package III and package iv of Multan Metro Bus misused his authority and committed offence of corruption and corrupt practices punishable under Section 9(a) of National Accountability Ordinance, 1999 read with the offences mentioned in the schedule to the ordinance by preparing/processing TS detail estimate on basis of NHA Templates instant of Market Rate Schedule (MRS) of Punjab Government. It was further alleged that Manzoor Ahmad, petitioner granted extension of’ time after lapse of more than 350 days and allowed payment of speedy execution, at the rate of 5% of contract price instead of imposing penalty as required under clause 39 of the contract agreement.

2. Likewise, it was alleged against petitioner Riaz Hussain (W.P No. 2466 of 2019) that he in the capacity of Executive Engineer-II, Multan Development Authority (MDA) misused his authority and committed offence of corruption and corrupt practices punishable under Section 9(a) of National Accountability Ordinance, 1999 read with the offences mentioned in the schedule to the ordinance by preparing/processing TS detail estimate on basis of NHA Templates instant of Market Rate Schedule (MRS) of Punjab Government. It was further alleged that Riaz Hussain, petitioner granted extension of time after lapse of more than 350 days and allowed payment of speedly execution at the rate of 5% of contract price instead of imposing penalty as required under clause 39 of the contract agreement.

3. Riaz Hussain son of Naseer Ahmad (patwari) (W.P No. 2376 of 2019) allegedly committed offence of corruption and corrupt practices in the capacity of being a patwari of Multan Development Authority by preparing and forwarding reports regarding illegal payment of Rs. 10,009,743/- on account of change in category of land and also by forwarding the reports regarding illegal payment of Rs. 19,440,000/- on account of disturbance allowance to “ghost” tenants and hence aided/abetted and failed to perform his duties which resulted into loss to national exchequer to the tune of millions of rupees in connivance with his. co-accused.

4. Gulzar Hussain, petitioner (W.P No. 2218 of 2019) was accused of committing offence of corruption by processing and verifying the reports of patwaries about the category of land and making the payments in his capacity as Qanoongo land acquisition branch of Multan Development Authority.

5. M/s. Abdul Qayyum Rao, Amjad Mushtaq and Ehsan Ali Gill,, Advocates representing petitioners contended that project was completed to the entire satisfaction of the employer; much after completion of project in all respects NAB authorities started an inquiry in January 2018 on anonymous complaint alleging corruption and corrupt practices during award and execution of contract by officials of Punjab Mass Transit authority; that consultants, contractor and others were involved in approval and execution of the contract; that alleged loss to the public exchequer if any, was well secured by the amout of security/bank guarantee which was deposited with Multan Development Authority (MDA); that collection of evidence has already been done by NAB authorises in this case and that admittedly project was completed in all respects and extension was granted under the Rules as such irregularity was committed. They further argued that allegations of violation of Rules are baseless as quality of work done was never questioned by any authority and till today no such allegation as to work being substandard has come forth and that simple allegation of violation of Rules without illegal gain on the part of present petitioners would be a question to be determined after recording evidence and that the petitioners have already joined the investigation and remained on physical remand with NAB authorities during which process of collection of evidence has been completed and their incarceration in jail would not serve any useful purpose. Learned counsel has placed reliance on the cases reported as Muhammad Saeed Mehdi vs. The State and 2 others (2002 SCMR 282), Wahid Bakhsh Baloch vs. The State (2014 SCMR 985), Saeed Ahmad vs. The State (1996 SCMR 1132).

6. Learned Special Prosecutor for NAB opposed the petitions on the grounds that petitioners were involved in malpractices and misuse of authority which resulted in huge loss to the public exchequer.

7. We have heard the learned counsel for the petitioners and learned Deputy Prosecutor General for NAB at length.

9. During arguments, it has been admitted by learned Special Prosecutor for NAB that the amount of security was still lying with Multan Development Authority (MDA) and the loss alleged by the NAB authorities can be made good by adjusting the amount. It has further been admitted that Chairman NAB has also approved adjustment of the amount from security amount already lying with the Multan Development Authority (MDA). We have noticed that the quality of work done at the spot has not been questioned in this case. It was not allegation against the petitioners that substandard work was done due to which loss was caused to national exchequer; rather it was case of prosecution/NAB authorities that work was not completed within stipulated period which was extended for one year and the amount at the rate of 5% for execution of work was paid to the contractors instead of imposing penalty. It is worth noticing that inquiry was initiated by NAB authorities on anonymous complain. The project, otherwise, was completed in all respects within extended time by competent authority. Petitioners were not alleged to have gained financial benefit from the amount paid from national exchequer and they were only blamed with misuse of authority and violating the rules on the subject. As noted above, the amount of loss calculated allegedly paid to the contractor was fully secured and could be adjusted from the amount already deposited. In reported case Muhammad SaeedMehdi vs. The State and 2 others (2002 SCMR 282), it was observed that bail cannot be withheld as punishment in cases of non-bailable offence against accused and that basic idea was to enable the accused to answer the criminal prosecution against him rather than to rot him behind the bars.

In the same case, the apex Court observed that truth or otherwise of allegation could only be determined at the trial after analysis of evidence that might be adduced by the parties and object of National Accountability Bureau Ordinance 1999 in its preamble provided for expeditious trial within shortest possible time. In another case reported as SaeedAhmad vs. The State (1996 SCMR 1132) a case of corruption, it was observed that case against accused was based on entirely documentary evidence which was in possession of the

prosecution and there was no possibility of tempering of the same, hence bail was granted to the accused/petitioner.

The allegations of misuse of authority and illegal gain are yet to be proved by the prosecution in this case. The loss calculated by the prosecution can also be made good from the amount of security already deposited by the co-accused Syed Masood Hussain. Moreover already the co-accused namely Syed Masood Hussain, Rana Waseem, Farhan Haider, Munem Saeed, Sabir Khan and Amanat Ali have been admitted to post arrest bail by this Court. The rule of consistency is also applicable in this case. We feel that the case of the petitioners is identical to the case of co-accused, therefore, they are entitled to equal treatment in the eyes of law, following the rule of consistency. Reliance is placed on the case of Muhammad Baud and another versus The State and another (2008 SCMR 173).

1. For the reasons recorded above, we are of the view that petitioners are entitled to the grant of post arrest bail. Consequently, all the above referred petitions are accepted; petitioners shall be released subject to furnishing bail bonds in the sum of Rs, 1,000,000/-(Rupees ten lacs only) each with two sureties each in the like amount to the satisfaction of learned trial Court, if not required in any other case.

(Y.A.) Petition allowed

PLJ 2021 Lahore 116

Present: Ch. Muhammad Iqbal, J.

INTIZAR SHAH etc.--Appellants

versus

ALAM SHAIR--Respondent

R.S.A. No. 86 of 2016, heard on 26.6.2019.

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

----Ss. 12 & 21(a)--Civil Procedure Code, (V of 1908), S. 100--Suit for specific performance--Dismissed--Appeal--Allowed--Agreement to sell--Denial of execution of agreement--No number was mentioned on back side of stamp paper--Non producing of stamp vendor in evidence--Duty of plaintiff--Discretionary powers of Court--There is no number of stamp paper written on back side of stamp paper it means that stamp paper was neither obtained by appellant/defendant for purpose of selling of his land nor put any signatures on back side of stamp paper--Furthermore, stamp vendor has not produced by respondent/ plaintiff--If a contract agreement contains stipulation of adequate compensation, in case of non-performance whereof, performance of same can be refused by Court--Respondent/plaintiff himself while appearing as PW-2 failed to prove his possession over suit property as well as execution of alleged agreement to sell--When appellant/defendant while filing written statement denied execution of alleged agreement to sell it was duty of respondent/plaintiff to produce trustworthy affirmative evidence to prove valid execution of agreement well as payment of consideration amount but he failed to prove agreement as well as possession through evidence--Grant of decree for specific performance comes within discretionary power of Court which can even refuse to grant relief on basis of equities despite suitor has proved case--Respondent failed to prove agreement to sell (Exh.P-1) as he has not produced stamp vendor--Agreement to sell is barred under Section 21(a) of Specific Relief Act and is not enforceable under law, as such, impugned judgment & decree passed by appellate Court is based on mis-reading and non-reading of evidence as mentioned above, as such finding of appellate Court on Issue No. 1 is hereby reversed--Appeal was allowed.

[Pp. 119, 120 & 121] A, B, C, D & E

PLD 2004 SC 860, 2019 SCMR 524 & 2010 SCMR 1630 ref.

M/s. Fateh Khan Niazi, Malik Matee Ullah & Syed Wajid Ali, Advocates for Appellants.

M/s. Muhammad Mushtaq Ahmad Dhoon & Mian Muhammad Ismail Thaheem, Advocates for Respondent.

Dates of hearing: 25/26.06.2019.

Judgment

Through this RSA, the appellant has challenged the validity of judgment & decree dated 23.01.2016 passed by the learned Addl. District Judge, Piplan District Mianwali whereby appeal of the respondent was accepted while setting aside the judgment & decree dated 10.09.2014 passed by the learned Civil Judge, Piplan and decreed the suit for specific performance of agreement to sell along with declaration filed by the respondent.

1. Brief facts of the case are that the respondent/plaintiff filed a suit for specific performance of agreement to sell dated 4.11.2010 alongwith declaration alleging therein that defendants No. 1, 4 to 10 were allottees of the suit property. Defendant No. 1 agreed to sell the property measuring 18-Kanals 09-Marlas to the plaintiff against consideration of Rs. 5,80,000/- through written agreement to sell dated 04.11.2010. Respondent/plaintiff paid Rs. 5,00,000/- in the presence of the witnesses and it was settled between the parties that after two months the mutation would be attested after payment of remaining consideration. Defendant No. 1 got proprietary rights through Mutation No. 477 dated 31.01.2011 from the Provincial Government and on the same day transferred the property to defendants No. 2 & 3 through Mutation No. 478 dated 31.01.2011. Respondent/plaintiff is in possession of the suit property and Mutation No. 478 was also incorporated in the revenue record which is illegal. The appellants /defendants filed contesting written statement. The learned trial Court framed issues, recorded pro and contra evidence of both the parties and vide judgment & decree dated 10.09.2014 dismissed the suit of the respondent/plaintiff. Respondent/plaintiff filed appeal which was accepted by the learned appellate Court while setting aside judgment & decree dated 10.9.2014 of the learned trial Court and decreed the suit of the respondent/plaintiff as prayed forvide judgment & decree dated 23.1.2016. Hence, this appeal.

2. Learned counsel for the appellants submits that the impugned judgment & decree of the learned appellate Court is patently illegal, against the law and facts of the case, based on misreading and non-reading of evidence; that the appellants denied the execution of alleged agreement to sell dated 04.11.2010 as well as possession and the respondent/plaintiff failed to prove the execution of agreement to sell through any concrete and solid evidence; that Exh.P-2 is agreement to sell and no detail of property in dispute is mentioned which is based on fraud, as such, judgment & decree of the learned appellate Court is liable to be set aside.

3. Learned counsel for the respondent contends that the respondent proved his case through evidence, as such, judgment & decree was rightly passed by the learned appellate Court which do not require for any interference.

4. Heard.

5. Issue No. 1 is a pivotal issue in this case which is reproduced as under:

“7. Whether plaintiff is entitled for decree of specific performance and cancellation of Mutation No. 478 as prayed for? OPP”

In order to prove the above issue plaintiff produced Zahid Mahmood Chattha (deed writer) PW-1 who stated that on 04.11.2010 he wrote agreement Exh.P-1 and signed the same as Exh.P-1/1. In cross-examination he admitted as under:

درست ہے کہ مبینہ اقرار نامہ معاہدہ بیع Ex.P1 میں رقم 1000000 روپے جو کے ہندسوں میں درج ہے کی لکھائی دوسری لکھائی سے مختلف ہے ۔۔۔۔۔ درست ہے کہ Pointer Ex.P1 سے تحریر شدہ ہے بال پوائنٹ سے تحریر شدہ نہ ہے ۔۔۔۔ درست ہے کہ Ex.P1 کے جاری کرنے کا نمبر درج نہ ہے ۔۔۔۔ درست ہے کہ مذکورہ گواہ امجد جٹ کا کوئی ذکر Ex.P1 میں نہ ہے ۔۔۔۔ درست ہے کہ Ex.P2 پر اکبر گواہ کے نام کے نیچے خان محمد گواہ کے دستخط موجود ہیں ۔۔۔۔۔ درست ہے کہ میرے خلاف مقدمہ نمبر 19/12 تھانہ پیپلاں بجرم 420، 468، 471، پی پی سی درج شدہ ہے جو کہ دو مختلف جاری اسٹام کی بابت ہے ۔۔۔۔۔ میرے سامنے رقم کی ادائیگی نہ ہوئی تھی۔

Alam Sher (PW-2) states that on 04.11.2010 defendant sell out the suit property measuring 18-Kanals, 9-Marlas against consideration of Rs. 5,80,000/- in the presence of Khan Muhammad and Akbar, at that time, he paid Rs. 5,00,000/- in the presence of the witnesses. In cross-examination he deposed as under:

مجھے علم نہ ہے کہ میں نے دعویٰ میں سودے ہونے کی جگہ درج کرائی ہے یا نہیں ۔۔۔۔۔ مجھے یاد نہ ہے کہ کس روز Ex.P1 اور Ex.P2 تحریر ہوئے ۔۔۔۔۔ درست ہے کہ میں نے اپنے عرضی دعویٰ میں منجانب انتظار شاہ بحق میرے اندراج انتقال کا کوئی ذکر نہ ہے ۔۔۔۔۔ درست ہے کہ انتظار شاہ اس بات کو تسلیم کرتا ہے کہ اس نے ملکیتی اراضی/اراضی متدعویہ محمد عظیم خان وغیرہ کو بیع قطعی کردی ہے۔

Khan Muhammad PW-3 reiterates the same story and in cross-examination he stated that Ghulam Muhammad witness is his real brother; further deposed as under:

درست ہے کہ میں اپنے جتنے بھی جملہ دستخط کرتا ہوں خان محمد بقلم خود تحریر کرتا ہوں ۔۔۔۔ درست ہے کہ وثیقہ نویس محمد حنیف ہر نولی شہر میں بیٹھتا ہے۔

Akbar and Ghulam Muhammad appeared as PW-4 & PW-5 respectively and reiterated the same facts as mentioned in the plaint.

7. Admittedly, there is no number of stamp paper written on the back side of the stamp paper it means that stamp paper was neither obtained by the appellant /defendant for the purpose of selling of his land nor put any signatures on the back side of the stamp paper. Furthermore, stamp vendor has not produced by the respondent/ plaintiff. In the alleged agreement to sell (Exh.P-1) it is written as under:

فریق اول اگر اس معاہدہ سے منحرف ہوا تو بطور ہرجانہ و جرمانہ مبلغ دس لاکھ 10,00,000/- روپے ادا کرنے ہونگے جسکے خلاف کوئی عذر یا قانونی چارہ گوئی کا مجاز نہ ہو گا۔ اگر فریق دوئم معاہدہ ہذا سے منحرف ہوا تو بیانہ کی رقم مبلغ 5,00,000/- لاکھ روپے ضبط تصور کی جائے گی۔

According to Clause (a) of the Section 21 of the Specific Relief Act, if a contract agreement contains the stipulation of adequate compensation, in case of non-performance whereof, the performance of the same can be refused by the Court. For ready reference, Section 21 (a) is reproduced as under:-

“21 Contracts not specifically enforceable. The following contracts cannot be specifically enforced:--

(a) a contract for the non-performance of which compensation in money is an adequate relief.

It is established on record that in the agreement to sell (Exh. P-1) a clear term is written that in case of non-performance of the contract, the first party/respondent would pay compensation of Rs. 10,00,000/- is an adequate compensation and in case the second party refused the agreement then the paid advance consideration amount of Rs. 5,00,000/- would be forfeited. Respondent/plaintiff himself while appearing as PW-2 failed to prove his possession over the suit property as well as execution of the alleged agreement to sell. When the appellant/defendant while filing the written statement denied the execution of alleged agreement to sell it was the duty of the respondent/plaintiff to produce trustworthy affirmative evidence to prove the valid execution of the agreement as well as the payment of consideration amount but he failed to prove the agreement as well as the possession through evidence. The Hon’ble Supreme Court of Pakistan in a case titled as Bolan Beverages (Pvt.) Limited vs. Pepsi Co.Inc. & 4 Others (PLD 2004 SC 860) held as under:

“21 .... There is no cavil with the proposition that money reliefs, like claim of compensation and damages are brought about by the plaintiffs mostly to avoid the mischief of Order II, rule 2 of the C.P.C. yet the calculation of such amount and the claim thereof would automatically give an impression that such loss or, damage is reparable in terms of money. We agree with the learned counsel and believe that, in the circumstances of the present case, the loss cannot be irreparable in case the decree for, compensation and damages etc. As claimed by the plaintiff is ultimately granted.”

Even otherwise, the grant of decree for specific performance comes within the discretionary power of the Court which can even refuse to grant the relief on the basis of equities despite the suitor has proved the case, as settled by the Hon’ble Supreme Court of Pakistan in its latest judgment titled as Sheikh Akhtar Aziz vs. Mst. Shabnam Begum & Others (2019 SCMR 524) held as under:

“13 ….. Where the requisites of a contract are found to be deficient, the plaintiff cannot seek specific performance of a contract. Even otherwise, the decree for specific performance is a discretionary relief which can be refused in case the Court is not satisfied either on the merits or on equities of the case.

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.”

So far as the arguments of the learned counsel for the respondent that the appellants in cross-examination admitted the stance taken by the respondent suffice it to say that admittedly appellant No. 1 alienated the suit property to appellant No. 2 to 10 but party approaching Court for grant of relief would have to discharge the burden of proving his asserted stance in pleading and has to stand on his own legs and could not avail benefit of any weakness in case of opposite party. Reliance is placed on the case titled as Sultan Muhammad & another vs. Muhammad Qasim & others (2010 SCMR 1630).

8. In view of above detail discussion, the respondent failed to prove the agreement to sell (Exh.P-1) as he has not produced stamp vendor. The agreement to sell is barred under Section 21(a) of the Specific Relief Act and is not enforceable under the law, as such, impugned judgment & decree passed by learned appellate Court is based on mis-reading and non-reading of evidence as mentioned above, as such finding of the learned appellate Court on Issue No. 1 is hereby reversed. The instant RSA is allowed and judgment & decree dated 23.01.2016 passed by the learned Addl. District Judge, Piplan District Mianwali is set aside and judgment & decree dated 10.09.2014 passed by the learned Civil Judge, Piplan is upheld. No order as to costs.

(Y.A.) Appeal allowed

PLJ 2021 Lahore 122

Present:Ch. Muhammad Iqbal, J.

MOVIEBOX MAGASTORES INTERNATIONAL LIMITED--Appellant

versus

PRESIDING OFFICER, INTELLECTUAL PROPERTY TRIBUNAL, LAHORE etc.--Respondents

F.A.O No. 39741 of 2020, decided on 18.9.2020.

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

----O.XXXIX, Rr. 1, 2--Intellectual Property Act, 2012, S. 19--Suit for declaration with permanent injunction acceptance of applications for temporary injunction--Exclusive owner--Consolidated orders--Balance of convenience--Non-establishment of license--Challenge to--Appellant has not bring on record anything to establish any license, permission, authorization or any sort of agreement in its favour, as such, ingredients required under Order XXXIX Rules 1 and 2 CPC for grant of ad-interim injunction i.e. prima facie arguable case, balance of convenience and irreparable loss, clearly tilt in favour of respondent/plaintiff as such Courts below have rightly passed impugned order--Argument of counsel for appellant that suit is not maintainable or trial Court has no jurisdiction, appellant can agitate all these grounds before trial Court--Appeal was allowed. [P. 125] A & B

Messrs Ali Masood Hayat, Rashid Yamin Kazmi and Farhad Ali Shah, Advocates for Appellant.

Mr. Zaheer-ul-Hassan Zahoor, Advocate for Respondent No. 2

Date of hearing: 18.9.2020.

Judgment

Through this single judgment, I intend to decide titled appeal (F.A.O No. 29741/2020) alongwith F.A.O No. 39623/2020 and F.A.O No. 39743/2020 as common questions of law and facts are involved therein.

1. Through this first appeal, the appellant has challenged the order dated 25.08.2020, whereby the learned trial Court/Presiding Officer, Intellectual Property Tribunal, Lahore accepted the applications under Order XXXIX Rule 1 and 2, C.P.C filed by the Respondent No. 2, Muhammad Akram Rahi.

2. Brief facts of the case are that the Respondent No. 2, Muhammad Akram Rahi, filed two separate suits for declaration with permanent and mandatory injunction for infringement of his copyrights against the appellant and Respondents No. 3 to 4 contending therein that he is an exclusiye owner of suit property i.e. poetry, songs composition, production and the Natia Kalam, fully described in the plaint, and no other person or company has right to use the aforesaid properties without getting permission from the owner/Respondent No. 2/plaintiff. The respondent/plaintiff further asserted that the appellant and Respondents No. 3 to 4 are using the Natia Kalam and Songs of the respondent/plaintiff without obtaining any copyrights, as such, they may be restrained to do so. Alongwith the suits, Respondent No. 2/plaintiff also filed applications under Order XXXIX Rule 1 and 2 C.P.C. for grant of interim injunction. The suit and application were contested by the appellant and Respondents No. 3 to 4 by filing written statement as well as reply to the application for interim relief. The learned trial Court, through consolidated impugned order dated 25.8.2020, allowed the applications under Order XXXIX Rules 1 and 2 CPC by issuing injunction against the appellant. Hence, these appeals.

3. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

4. In paragraph No. 2 of the plaint, the Respondent No. 2/plaintiff has categorically stated that he is an exclusive owner of intellectual property i.e. poetry, composition, production and Natia Kalam. Para 2 of the plaint is reproduced as under:

“2. That brief facts of the case are that amongst others, the plaintiff is the exclusive owner of the poetry, composition, production and vocal, etc. regarding the following Natia kalam/songs:

(Natia Kalam)

i. Madiney nu Jandeyaan Rahiya.

(Songs)

ii. Sargh Gaye merey Naseeb.

iii. Jaan Nikal Gayi Meri.

iv. Terey Viyah Diyan Ron Paiyaan.

v. Challa Galh Di vey gaani.

vi. Na Oh Waqt Raye.

vii. Kamli Kar Kay Chad Geyoun, viii. Tenu Vekh Vekh Dil Mera.

ix. Rahiya Oye Tera Kot.

x. Maa Mari Tey Rishtey ie Muk gaye.

xi. lha Kajley Waali Akh Mastani Yaar Di.

and no other person or company have any concern, right, title or relations with the above properties of the plaintiff, in any manner whatsoever and the same are registered accordingly under the Intellectual Property Laws in the name of the plaintiff to protect the international and digital rights of the plaintiff over his above said’properties.”

In response to the above para of the plaint, respondent in Para 2 of the written statement has admitted the averment, which Para 2 of the written statement is reproduced as under:

“2. That the contents of para No. 2 are vehemently denied being incorrect and Defendant No. 1 released the songs through plaintiff from 1996 to onwards at numbers of time say like Song No. 2 & 5 was released in the year of 1999, Song No. 6 & 7 is released in 1999 and Song No. 10 was part of feature film Danda Peer which was released on 2002 and once any dialog composition, music, script, story which relates to anybody with relates for making of the film it is all attributed in the name of ownership of producer of said film not any individual so the claim of the plaintiff is highly objectionable in the eyes of law and mere single registration of copyright certificate did not fulfill the legal requirement of the law.”

As per the above contests of the written statement the appellant admitted that the material/songs, mentioned in paragraph No. 2 of the plaint, was released through plaintiff from 1996 to onwards a number of times which prima facie means that the aforesaid properties are owned by the respondent/plaintiff. Further in paragraph No. 5 of the plaint, the Respondent No. 2 alleged that the appellants/defendants are getting monetary benefits from the properties which are actually owned by the respondent/plaintiff and are continuously causing damage to the copyrights and monetary benefits of the respondent/ plaintiff. In. written statement and in reply to Paragraph No. 5 of the plaint, the appellant took stance that:

“5 ….. It is mandatory to mention here that the Defendant No. 1 issued and released the different albums of the plaintiff and the

Defendant No. 1 always boost and polish the activities of the plaintiff and in the year of 1999 the Defendant No. 1 released album namely YAARIAN and Defendant No. l released album in the year of 2000 namely MELAY LAGDAY REHN GE and in furtherance in the year of 2002 Defendant No. 1 released the album namely MAA which beats the record sale in the whole world.”

As per respective pleadings of the parties prima-facie respondent is owner of the suit properties and has absolute right to gain usufructs of the same. The appellant has not bring on record anything to establish any license, permission, authorization or any sort of agreement in its favour, as such, the ingredients required under Order XXXIX Rules 1 and 2 CPC for grant of ad-interim injunction i.e. prima facie arguable case, balance of convenience and irreparable loss, clearly tilt in favour of the respondent/plaintiff as such Courts below have rightly passed the impugned order.

6. So far as argument of learned counsel for the appellant that the suit is not maintainable or the learned trial Court has no jurisdiction, the appellant can agitate all these grounds before the learned trial Court.

1. For what has been discussed above, instant appeal as well as connected appeals i.e. F.A.O No. 39623/2020 and F.A.O No. 39743/2020 are hereby dismissed being devoid of any merits. No order as to costs.

(Y.A.) Appeal Dismissed

PLJ 2021 Lahore 125

Present:Ch. Muhammad Iqbal, J.

Mst. RAHEELA MALIK--Petitioner

versus

FEDERAL SECRETARY etc.--Respondents

W.P. No. 51635 of 2020, decided on 25.11.2020.

Constitution of Pakistan, 1973--

----Art. 199--Transfer of Evacuee Trust Property--Evacuee Trust Property--Tenancy was transferred--Tenancy rights--Deposit of tenancy fee--Issuance of letter regarding enhancement of monthly rent--Issuance of notice for reassessment of rent--Fixation of rent--Appeal--Reducing of rent--Appeal--Ex-parte disposed of--Revision petition--Withdrawal of revision petition by council of petitioner--Application of restoration of civil revision--Dismissed--Present petitioner sworn an affidavit before Federal Secretary with averment of non-authorizing any counsel to file application for restoration of her Revision Petition--Said affidavit in original is available on file of Revising Authority alongwith copy of I.D Card of petitioner--Instant writ petition was filed by one Muhammad Rafiq on behalf of Raheela Malik as her special attorney--She has not challenged order herself and also has not filed any affidavit in this regard--In clause 3 of affidavit petitioner authorized her counsel to withdraw said revision petition--Counsel for petitioner put his signatures on margin of order sheets and presumption of truth is attached to judicial proceedings--Petition was dismissed.

[Pp. 127, 128, 129 & 130] A, B, C, D & E

2002 SCMR 1336, 2004 SCMR 964 and 2008 SCMR 1611 ref.

Malik Mujeeb-ur-Rehman, Advocate for Petitioner.

Mr. Adeel Ahmad Kamran, Asst. Attorney General for Respondent No. 1.

M/s. Kh. Muhammad Ajmal & Nasir Ahmad Awan, Advocates for Respondents No. 2 to 4.

Date of hearing: 25.11.2020.

Order

Through this writ petition, the petitioner has challenged the legality of order dated 09.09.2020 passed by the Secretary Ministry of Religious Affairs and Interfaith Harmony, Islamabad/Revisional Authority who dismissed application for restoration of revision petition of the petitioner.

1. Brief facts of the case are that Evacuee Trust Property Bearing No. SW-III-40-S-11 situated at Haidar Road, Krishan Nagar, Lahore, a residential-cum-commercial Sub Unit, was under tenancy of one Babu Abdul Waris son of Abdul Ghani Malik, father in law (سسر) of petitioner on monthly rent @ Rs. 771/- w.e.f 01.01.2005. After the death of her father-in-law, the tenancy was transferred with the consent of his legal heirs in favour of Abid Azeem Malik by the Administrator (E.Z), Evacuee Trust Property, Lahore vide letter dated 29.10.2014 whereafter the said rights were transferred in favour of the petitioner on 11.11.2014 and the Deputy Administrator, Lahore approved the tenancy rights in favour of the petitioner on 12.11.2014 at the rate of Rs. 1591/-after 30 % increase as per the stipulation of Scheme for the Management and Disposal of Available Urban Properties situated in the Province of the Punjab and change of tenancy fee equal to 48-months, new rent is Rs. 76,368/- and in compliance of said order, she deposited the tenancy fee in the Board’s account. During the year 2019, a letter No. 3372 dated 30.10.2019 was issued by Respondent No. 4 to the petitioner informing her that monthly rent of sub-unit has been fixed @ Rs. 13,450/- w.e.f. 27.07.2007 and directed to deposit Rs. 39,30,726/- & 14,77,104/-total amount of Rs. 54,07,830/- as arrears of rent and within seven days. Respondent No. 4 then issued notice dated 12.06.2006 for reassessment of rent @ Rs. 8,000/- per month to the predecessor-in-interest of the petitioner, thereafter he fixed the rate of rent Rs. 6400/- per month w.e.f. 01.07.2006. Being aggrieved of the said order, the petitioner filed appeal before the Administrator, Evacuee Trust Property, Lahore who reduced the_rent from Rs. 6400/- per month to Rs. 5800/- per monthvide order dated 17.02.2007. Against the said order, petitioner filed appeal before the Chairman, Evacuee Trust Property Board, who disposed of said appeals vide ex-parte order dated 27.07.2007 and fixed rent of Sub Unit in question @ Rs. 5/- per square feet. Whereafter the petitioner filed Revision Petition No. 3-102/2019/Rev before Federal Secretary, Ministry of Religious Affairs and Interfaith Harmony, (Revising Authority), Govt. of Pakistan, Islamabad which was fixed for hearing on 24.06.2020 and on the said date, the petitioner could not attend the Court proceedings due to Covid-19 and her learned counsel Syed Zulfiqar Ali Shah, Advocate withdrew, the revision petition vide order dated 24.06.2020. After knowledge, the petitioner immediately filed application for restoration of the civil revision which was dismissed by the Secretary Ministry of Religious Affairs and Interfaith Harmony, Islamabad/Revisions Authority vide order, dated 09.09.2020. Hence, this writ petition on the ground that the petitioner has not given any authority to her learned counsel to withdraw the civil revision, as such, impugned order is not sustainable in the eye of law and requested that withdrawal order be recalled and revision petition be decided after hearing the petitioner.”

2. I have heard the arguments of the learned counsels for the parties and gone through the record with their able assistance.

4. The original record of the said case was requisitioned which was produced by the learned counsel for the respondents Khawaja Muhammad Ajmal, Advocate before this Court. After examining the record, it reveals that Syed Zulfiqar Ali Shah, who was counsel of the petitioner, filed Revision Petition before Secretary. The present petitioner sworn an affidavit before the Federal Secretary with the averment of non-authorizing any counsel to file application for restoration of her Revision Petition. The said affidavit in original is available on the file of the Revising Authority alongwith copy of the I.D. Card of the petitioner, scanned copy whereof is as under:

| | | | | | --- | --- | --- | --- | | | | | | | | | | | | | | Description: Lahore JPG | | |

Moreover the instant writ petition was filed by one Muhammad Rafiq on behalf of Raheela Malik as her special attorney. She has not challenged order herself and also has not filed any affidavit in this regard. In clause 3 of affidavit the petitioner authorized her counsel to withdraw the said revision petition. For ready reference, clause-3 of affidavit is reproduced as under:

3۔ یہ کہ شرح کرایہ کی بابت سائلہ نے ایک عدد Revision Petition No. 3-109/2019 بذریعہ سید ذوالفقار علی شاہ ایڈووکیٹ عدالت ہذا میں دائر کی تھی تاہم میری زبانی ہدایت پر میرے وکیل نے مذکورہ نگرانی کو واپس لینے کی استدعا کی چناچہ عدالت ہذا نے بذریعہ حکم مورخہ 24.6.2020 بمقام اسلام آباد میری دائر کردہ نگرانی کو واپس کئے جانے کی استدعا منظور کی اور اسے Dismissed as with drawn فرمایا۔

Syed Zulfiqar Ali Shan withdrew the civil revision on 24.06.2020 and the Revisional Authority/Secretary vide order dated 24.06.2020 passed the following orders;

“24.06.2020

Islamabad

For the Petitioner: Syed Zulfiqar Ali Shah, Advocate.

For ETPB: Mr. Mudassar Ikram Ch. Additional Legal Advisor alongwith Mr. Atif Hameed, Inspector, ETPB.

The instant Revision Petition has been filed against the Order-in-Appeal No. PB/APPEAL/691/07 dated 27.07.2007, whereby, the Chairman fixed the rent @ Rs. 5/- per square fit of the evacuee trust property bearing No. SW-III-40-S-11 under Demand No. l-1111-1-2893-0, situated at Haider Road, Karishan Nagar, Lahore.

1. The learned Counsel for the petitioner appeared and stated that he wants to withdraw the instant Revision Petition.

2. On the other hand, the Additional Legal Advisor, ETPB has no objection.

3. Under the circumstances, the instant Revision Petition is dismissed as withdrawn.”

The learned counsel for the petitioner put his signatures on the margin of the order sheets and presumption of truth is attached to the judicial proceedings. Reliance is placed on the cases of Muhammad Ramzan vs. Lahore Development Authority, Lahore (2002 SCMR 1336), Fayyaz Hussain vs. Akbar Hussain & others (2004 SCMR 964) &

Waqar Jalal Ansari vs. National Bank of Pakistan & another (2008 SCMR 1611).

5. Furthermore, the petitioner filed application for restoration of the Revision Petition and she has not stated any fraud committed by her counsel with her. This ground has also not taken in the instant writ petition as well, meaning thereby, she admitted that Syed Zulfiqar Ali Shah was her counsel who performed his duty as per her instructions. She has not denied the execution of power of attorney/ affidavit in favour of her counsel and she authorized her counsel to perform his duty as per terms and conditions mentioned in clause-3 of the power of attorney/affidavit reproduced above.

6. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned order passed by the Federal Secretary and has also not identified any jurisdictional defect calling for interference by this Court.

1. In view of above, this writ petition is dismissed being devoid of any merits.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 130

Present: Muzamil Akhtar Shabir, J.

Syed ABDUL HALEEM--Petitioner

versus

FAMILY JUDGE, FAISALABAD etc.--Respondents

W.P. No. 26284 of 2019, decided on 02.05.2019.

Constitution of Pakistan, 1973--

----Art. 199--Family Court Act, (XXXV of 1964), S. 10(5)--Suit for dissolution of marriage--Ex-parte decreed--Jurisdiction-Challenge to--It is a settled principle of law that in family matters, Court within local limits of which wife ordinarily resides, has jurisdiction to entertain dispute regarding same--So far as other objection of petitioner that he was not properly served before proceeding against ex-parte is concerned, suffice it to say that proper address of petitioner was provided where notices were sent by Court before proceeding ex-parte against him and decreeing suit after his non-appearance--Court had satisfied itself that despite notices petitioner had not appeared and thereafter proceeded further in matter and decided same--Such findings are based on sound judicial principles--Non-availability of petitioner at his residence when notice was delivered is not sufficient to hold that his service had not been effected in given circumstances of case, especially when it is not denied that his address was correct--Court rightly recorded ex-parte evidence of respondent and on statement of respondent that she had developed hatred and could not live as wife of petitioner decreed suit--Impugned judgment passed by trial Court is based on proper appreciation of record and said findings are well founded warranting no interference and no exception can be taken to same--Petition was dismissed. [Pp. 131 & 132] A, B & C

PLD 2016 SC 613 ref.

Sh. Mushtaq Ali, Advocate for Petitioner.

Date of hearing: 2.5.2019.

Order

Through this constitutional petition, the petitioner has called in question ex-parte judgment and decree dated 26.02.2019 passed by Judge Family Court. Faisalabad, whereby suit for dissolution of marriage filed by Respondent No. 2 (“respondent”) against the petitioner has been ex-parte decreed on the ground of khula under Section 10(5) of the Muslim Family Act, 1964 and the respondent has been directed to surrender 25% of her dower.

1. The learned counsel for the petitioner has argued that the Courts at Lahore and not at Faisalabad have the jurisdiction to try the matter and the petitioner had not been properly served before proceeding ex-parte, therefore, the decree for dissolution of marriage be set- aside.

3. Perusal of record shows that the petitioner had mentioned in the plaint her address of Faisalabad i.e. 29- X-29, Madina Town, Faisalabad and in paragraph No. 9 states that she is residing in Faisalabad. It is a settled principle of law that in family matters, the Court within the local limits of which the wife ordinarily resides, has the jurisdiction to entertain dispute regarding the same. Reliance in this regard has been placed on the judgment reported as Mst. Yasmeen Bibi vs. Muhammad Ghazanfar Khan and others (PLD 2016 S.C. 613). In the present case although the petitioner claims that respondent resides in Lahore but the respondent has claimed that she now resides in Faisalabad. Law does not provide for a wife to reside at a particular place for a particular period of time before it could be concluded that the wife ordinarily resides at that particular place before she could file a suit for dissolution of marriage and only the intention of the wife to reside there is important which is evident from her address given in the memorandum of plaint and Para No. 9 of the same. In view of the afore referred contents of the plaint, this Court has no reason to hold that the Court at Faisalabad lacked jurisdiction to entertain the suit

and decide the same, therefore, the said objection of the petitioner is turned down being baseless.

4. So far as the other objection of the petitioner that he was not properly served before proceeding against ex-parte is concerned, suffice it to say that proper address of the petitioner was provided where the notices were sent by the Court before proceeding ex-parte against him and decreeing the suit after his non-appearance. The Court had satisfied itself that despite notices the petitioner had not appeared and thereafter proceeded further in the matter and decided the same. Such findings are based on sound judicial principles. Non-availability of the petitioner at his residence when notice was delivered is not sufficient to hold that his service had not been effected in the given circumstances of the case, especially when it is not denied that his address was correct. The contention of the petitioner that suit could only be decreed after reconciliation proceedings have failed and in his absence no decree could be passed is negated by the fact that the said position of law would be applicable where the petitioner had entered appearance in the Court and Court had not provided opportunity of reconciliation but as the petitioner was not available in Court, non-adherence to the same would not be fatal. The Court rightly recorded ex-parte evidence of the respondent and on statement of the respondent that she had developed hatred and could not live as wife of the petitioner decreed the suit. The impugned judgment passed by the trial Court is based on proper appreciation of the record and said findings are well founded warranting no interference and no exception can be taken to the same.

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

(M.M.R.) Petition was dismissed

PLJ 2021 Lahore 132 [Multan Bench Multan]

Present: Ali Baqar Najafi, J.

RanaGHULAM ABBAS--Petitioner

versus

SIDRA GHAUS etc.--Respondents

C.R. No. 231 of 2019, decided on 4.4.2019.

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

----S. 115 & O.XL R. 1(a)--Suit for partition of property--Decreed--Auction of property--Application for appointment of receiver for collection of rent--Allowed--Revision petition--Dismissed--Concurrent findings--Challenge to--Possession of property is with petitioner and Respondents No. 4 to 8 and nothing was so far paid to Respondents No. 1 to 5 and they also have not cooperated to internally auction of property on basis of reserved price--Argument advanced by counsel for petitioner that under Section 9 of Punjab Partition of Immovable Property Act, 2012, a receiver can be appointed only after consensus in writing amongst all co-owners for a time to be regulated by Court--However, such referee is appointed only for partition and not for collecting mesne profits, rent etc. for its distribution to others shareholders--Under Section 10, it can conduct internal auction and under Section 11, it can conduct an open auction, but referee in present case was appointed for collection of rent--While following judgments of Indian Supreme Court, that receiver has to be appointed where case of emergency is made out keeping in view conduct of parties aimed at constantly depriving other party for their right to share; profit in joint property--It was rightly appointed in a view to safeguard interest of all shareholders--For what has been discussed above, this Court has not found any illegality or defect to interfere into concurrent findings recorded by Courts below Resultantly, this civil revision is dismissed in limine--Revision was dismissed.

[Pp. 135 & 136] A & B

2014 YLR 1654 and PLD 2013 Peshawar 1.

Malik Muhammad Siddique Kamboh, Advocate for Petitioner.

Date of hearing: 7.3.2019.

Order

Through this civil revision under Section 115, CPC, the petitioner has challenged the orders dated 20.12.2018 and 6.2.2019 whereby the learned trial Court as well as the learned appellate Court have concurrently allowed the application under Order XL Rule 1(a) CPC and appointed the receiver.

1. Brief facts giving rise to the filing of this civil revision are that Respondents No. 1 to 3 filed a suit for partition of property, namely, Khewat No. 1761, Khatooni No. 1785 measuring 6 marlas 8 sarsai, Khewat No. 1756, Khatooni No. 1780 measuring 03 marlas 07 sarsai Sakni Tehsil and District Sahiwal to the extent of share of property left by the deceased; Ghulam Ghaus in their capacity as his legal heirs, against the petitioner and Respondents No. 4 to 8 in which a preliminary decree was passed on 05.11.2015” and the local commission was appointed to ascertain the divisibility or evaluation of the said and on the basis of his report filed on 4.1.2016 the learned trial Court fixed the reserved price of Rs. 5,00,00,000/- (five crore) on 09.02.2016, on the basis of the government schedule and passed the order dated 21.04.2016 which was however set-aside by the revisional Court on 23.05.2017, and the reserved price was changed to Rs. 6,42,00,000/-. However, the auction could not be conducted. Meanwhile, the Respondents No. 1 to 3 filed an application under Order 40 Rule l(a) CPC to appoint a receiver for collection of the rent of disputed property, which was allowed on 20.12.2018 and the revision petition preferred by the petitioner was also dismissed on the reasons that after the filing of the suit for partition in the year 2012, a preliminary decree was already passed exparte on 05.11.2015, whereafter on 04.01.2016 the local commission submitted a report about the indivisibility of the property but no serious efforts were made to auction the property comprises of 8/9 shops either internally or externally. However, nothing was paid to the respondent seeking partition since the preliminary decree of mesne profit was passed on 05.11.2015 showing their conduct. It was, therefore, observed that the Respondents No. 1 to 3 being the legal heirs were deprived of their rights of receiving rent as per their share. The Civil Nazir was therefore appointed as Receiver for Rs. 5000/- as monthly fee to collect future rent as the Respondents No. 1 to 3 have made out a prima-facie case. The possession of the property with receiver was found essential to safeguard the interest of the shareholders since the possession of receiver is always considered as possession of the Court.

2. Learned counsel for the petitioner submits that Respondent No. 1 is not the widow of Ghulam Ghaus as she had got a divorce from him and that the inheritance mutation was illegally sanctioned. He adds that under Section 9 of the Punjab Partition of Immovable Property Act, 2012 only upon the agreement of all the shareholders of the immovable property a receiver can be appointed.

3. Arguments heard. File perused.

4. After hearing the learned counsel for the petitioner and perusing the record, it is found that the subject of discussion is the scope of Order 40 Rule 1(a) CPC which is reproduced as under:

“1. Appointment of receivers.--(1) Where it appears to the Court to be just and convenient, the Court may be order--

(a) Appoint a receiver of any property, whether before or after decree;

(b) Remove any person from the possession or custody of the property;

(c) Commit the same to the possession, custody or management of the receiver; and

(d) Confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit.”

1. A perusal of the said provisions reveals that if it is so justified, the civil Court can appoint a Receiver of property before or after the decree, and can also remove any person from possession or custody of the property, and can also give the possession of such property to the Receiver by conferring powers for realization, management, protection, improvement of property, and to collect rents & profits and dispose of such rent and profits. However, if a party has no right to remove a person from the possession of the property, such possession shall not be taken.

7. Admittedly, the possession of the property is with petitioner and Respondents No. 4 to 8 and nothing was so far paid to the Respondents No. 1 to 3 and they also have not cooperated to internally auction of the property on the basis of the reserved price. The argument advanced by the learned counsel for the petitioner that under Section 9 of the Punjab Partition of Immovable Property Act, 2012, a receiver can be appointed only after the consensus in writing amongst all the co-owners for a time to be regulated by the Court. However, such referee is appointed only for partition and not for collecting mesne profits, rent etc. for its distribution to the others shareholders. Under Section 10, it can conduct internal auction and under Section 11, it can conduct an open auction, but the referee in the present case was appointed for collection of rent.

1. The impugned order was passed in line of the dictum followed by a Division Bench of Sindh High Court in case titled ‘Pir Omar Khayyam vs. Mrs. Ruby Hameedullah and 7 others” reported as 2014 YLR 1654 and case titled “Mst. Hussan Jamala and another vs. Government of Khyber Pukhtunkhwa through Secretary, Home and Tribal Affairs, Peshawar” reported as PLD 2013 Peshawar 1, wherein it was held, while following the judgments of the Indian Supreme Court, that receiver has to be appointed where the case of emergency is made out keeping in view the conduct of the parties aimed at constantly depriving the other party for their right to share the profit

in the joint property. It was rightly appointed in a view to safeguard the interest of all the shareholders.

9. For what has been discussed above, this Court has not found any illegality or defect to interfere into the concurrent findings recorded by the Courts below. Resultantly, this civil revision is dismissed in limine.

(M.M.R.) Civil Revision Dismissed

PLJ 2021 Lahore 136 (DB)

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

COLLECTOR CUSTOMS MODEL CUSTOMS COLLECTORATE FAISALABAD--Applicant

versus

M/s. ELITE ENTERPRISES, FAISALABAD and another--Respondents

C.R. No. 193451 of 2018, decided on 02.05.2019.

Customs Ordinance, 1969 (IV of 1969)--

----S. 196--Issuance of show-cause notice--Discrepancies in description, misuse of bounded cannier, non-traceability representative, cartel of persons--Involvement in business of replacement of transhiped goods--Filing of appeal--Disposed of--Direction to applicant department to release--Merchandise on payment of requisite duty and taxes--Scope of reference--Challenge to--Perusal of record shows that after comparison of transshipment declaration with impugned examination report, Appellate Tribunal gave findings of facts that no deviation was found in contents of impugned cargo and no sufficient material much less any material existed on record to substantiate prosecution case, rather entire case was based on suspicions, thus, lacked ingredients of statutory show cause notice--Findings of facts recorded by Appellate Tribunal, unless found to be either perverse or contrary to record, cannot be interfered with by High Court, while examining questions of law proposed under law--Scope of reference jurisdiction under law is restricted only to extent of examining questions of law arising from order passed by learned Appellate Tribunal and not to decide questions of facts, or for determining disputed facts--Reference was declined.

[Pp. 138 & 139] A & B

2014 SCMR 907, 2017 PTD 756 and 2017 PTD 1579 ref.

Ch. Muhammad Awais Kamboh, Advocate for Applicant-department.

Ch. Sakhi Muhammad, Advocate for Respondents.

Date of hearing: 02.05.2019.

Order

Through instant Reference Application under Section 196 of the Customs Ordinance, 1969, the following questions of law, asserted to have arisen out of impugned judgment dated 08.01.2018, passed by learned Customs Appellate Tribunal, Bench-II, Lahore (“Appellate Tribunal”), have been proposed for our opinion:-

i) “Whether the learned Appellate Tribunal has not erred on law to underrate and ignore the crucial forensic evidence?

ii) Whether the learned Tribunal has rightly ignored the vital importance of the intactness/genuineness of the rivets & bolts mechanism of the container in-transit which ensures the integrity of the bonded cargo?

iii) Whether the learned Tribunal has rightly ignored the other ancillary corroborating circumstantial evidence such as shabby condition of goods found on examination?

iv) Whether the learned Tribunal has not given an inconsistent and conflicting judgment viz-a-viz Tribunal’s judgment dated 03.01.2018 in the case even arising out of the same Order-in-Original No. 26/2016. In the said judgment dated 03.01.2018 passed in identical case of Customs Appeal No. 384/LB/2017 (M/s. Pak Shaheen Cargo Services (Pvt) Ltd. vs. Additional Collector Customs Adjudication Faisalabad and others) the learned Tribunal remanded the case back to the adjudicating authority for decision afresh?

v) Whether the learned Tribunal has rightly quashed the adjudication order and ordering release of goods which are involved as case property in the criminal proceedings against the importer and bonded carrier vide FIR No. 06/2015 dated 13.07.2015 pending before the Special Judge (Customs & Taxation) Lahore?

vi) Whether the learned Tribunal’s impugned judgment is not skewed, lopsided and unilateral insomuch as the respondent department’s written arguments (i.e. para-wise comments) have been blacked out whereas appellant’s arguments have been reproduced and considered to the exclusion of the respondent department’s arguments?

vii) Whether on the facts and circumstances of the case, the learned Customs Appellate Tribunal has not erred in law and facts by holding that the importer has not violated Section 26.79.80 of Customs Act, 1969 and by holding that importer has not committed offence of misdeclaration/tax Fraud in terms of Section 32 and 32A of the Customs Act, despite presence of corroborative evidence and Forensic report of Punjab Forensic Science Agency (24-6-16) that the Nuts and Bolts of the doors of the subject containers have been replaced/un-matched?”

1. Brief facts of the case are that a show cause notice regarding alleged discrepancies in description, misuse of bonded carrier, non-traceability of the importer representative, involvement of cartel of persons involved in the business of replacement of transshipped goods etc., was issued to respondent, which culminated in passing Order-in-Original dated 03.03.2016. Feeling aggrieved, respondent filed appeal before learned Appellate Tribunal, which was disposed of and applicant-department was directed to release the merchandise in question on payment of requisite duties and taxes, vide judgment dated 08.01.2018, which has been impugned through instant reference application.

2. Learned counsel for the applicant was confronted with the impugned findings given by learned Appellate Tribunal that are of facts, hence, no question of law arises out of the impugned order. Despite arguments at some length, he could not give any satisfactory response.

3. Arguments heard. Record perused.

5. Perusal of record shows that after comparison of transshipment declaration with impugned examination report, learned Appellate Tribunal gave findings of facts that no deviation was found in contents of impugned cargo and no sufficient material much less any material existed on record to substantiate prosecution case, rather entire case was based on suspicions, thus, lacked ingredients of statutory show cause notice. The operative part of impugned judgment is reproduced hereunder:

“10. We begin by noting that unless there is prima facie material showing that the importer had committed a breach of the substantive provisions of the Customs Act, 1969, he cannot be convicted on the sole fact that he abandoned his Cargo or that the merchandise was shabbily packed; Even the Laboratory Report with context to tampering in doors of impugned Cargo Container being heavily relied upon by the department does not impart any conclusive proof supporting the occurrence of event of replacement of Cargo The Transshipment Declaration was also comparatively perused by this Tribunal with the impugned examination report however we found NIL deviation in the contents of impugned Cargo. We are of the considered opinion that no sufficient material much less any material exists on records to substantiate the prosecutions’ case moreover the charges raised in the impugned show cause notice are generic and vague, lack details and are unintelligible and are entirely based on suspicions thus lack ingredients of a statutory show cause notice delineated under the Customs Act, 1969.”

6. Needless to say that the findings of facts recorded by learned Appellate Tribunal, unless found to be either perverse or contrary to record, cannot be interfered with by the High Court, while examining questions of law proposed under the law. Scope of reference jurisdiction under the law is restricted only to the extent of examining questions of law arising from order passed by learned Appellate Tribunal and not to decide questions of facts, or for determining disputed facts. Reference is made to Messrs F.M. Y. Industries Ltd. v. Deputy Commissioner Income Tax (2014 SCMR 907), Commissioner Inland Revenue, Zone-I v. Messrs Industrial Chemicals (Pvt.) Ltd, (2017 PTD 756), Commissioner of Income Tax v. Ghee Corporation of Pakistan (Pvt.) Ltd. (2017 PTD 1167), Commissioner Inland Revenue v. Messrs Adeel Brothers (2017 PTD 1579) and Commissioner Inland Revenue, Zone-II v. Al-Hamad International Container Terminal (Pvt.) Ltd. (2017 PTD 2212).

1. Since the decision by learned Appellate Tribunal is based on findings of facts, therefore, we decline to exercise advisory jurisdiction.

This Reference Application is decided against applicant-department.

1. Office shall send a copy of this order under seal of the Court to the Appellate Tribunal as per Section 196(5) of the Customs Act, 1969.

(Y.A.) Reference was declined

PLJ 2021 Lahore 140

Present: Muzamil Akhtar Shabir, J.

KHALID MAHMOOD--Appellant

versus

ADDITIONAL DISTRICT JUDGE, etc.--Respondents

W.P. No. 10657 of 2019, decided on 22.02.2019.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Suit for dissolution of marriage etc. was decreed and minors were held entitled to receive maintenance allowance--Entitlement of dowry articles--Challenge to--It is observed that minor respondents being legitimate children of petitioner are entitled to be maintained by their father and petitioner cannot absolve from his responsibility merely by stating that he has no sufficient source of income to maintain his children--As order of maintenance allowance for Rs. 2000/- per month each is not exorbitant and would barely be enough to meet with day to day needs of minors and is based on proper appreciation of evidence which finding is well founded, therefore, constitutional petition against same is not maintainable as no illegality in impugned order is pointed out--This Court while exercising constitutional jurisdiction does not ordinarily reappraise evidence produced before Courts below to substitute findings of facts recorded by said Courts, nor gives its opinion regarding quality or adequacy of evidence unless any misreading, non-reading of record or any illegality is pointed out, which have not been established on record, hence, there is no ground to set-aside said findings of fact.

[Pp. 141 & 142] A, B & C

Rana Muhammad Naeem Khan, Advocate for Petitioner.

Date of hearing: 22.02.2019.

Order

Through this constitutional petition, the petitioner has called in question the judgments and decrees dated 03.05.2018 and 22.12.2016 passed by the Courts below, whereby the said Courts have partially allowed the claim of the respondents.

1. Brief facts of the case are that marriage between the parties was solemnized on 30.10.2011 and from the said wedlock minor Respondents No. 3 to 5 were born. On 04.02.2016, the plaintiffs filed a family suit for dissolution of marriage, etc., against the petitioner-defendant, which was contested by the petitioner by way of filing written statement in which he controverted the claim of the respondents. On conclusion of the trial, the minor Respondents No. 3 to 5 were held entitled to receive maintenance allowance of Rs. 2000/- per month each with 10% annual increase from institution of the suit till their legal entitlement. The plaintiff/Respondent No. 2 was entitled to receive Rs. 300,000/- as an alternate price of dowry articles. On appeal filed by the respondent, the learned appellate Court maintained the findings recorded by the learned trial Court vide judgment and decree dated 03.05.2018. Both the afore-referred judgments and decrees are under challenge through this constitutional petition.

2. Heard. Record perused.

3. The counsel for the petitioner while referring observation made in Paragraph No. 8 of the judgment dated 22.12.2016 passed by the learned trial Court, whereby the said Courts fixed the alternate price of dowry keeping in view admission of the defendant at Rs. 3,00,000/- argues that it is nowhere stated by the petitioner that he admitted the claim of dowry articles. It is noticed that in Paragraph No. 3 of the written statement, although the petitioner has stated that the list is fake and fabricated yet he did not deny that dowry articles of ordinary nature were given to respondent rather claimed that same were consumed during the subsistence of marriage and the rest of the items are lying seal pack. It is further noticed that the learned trial Court after considering the evidence available on record fixed the alternate price of dowry articles after excluding jewellery, clothes, shoes, beddings and items of fancy decoration and not merely on the basis of admission. Consequently, the said argument of the learned counsel is of no force, hence, replied in negative.

5. The other arguments raised by the learned counsel for the petitioner is that the learned Courts below have not considered the financial capacity of the petitioner, who is source less and earns Rs. 9000/- only per month, whereas the maintenance allowance of the minor respondents fixed by the Courts below @ Rs. 2000/- per month each is not within his paying range. It has come in the evidence that the petitioner is a Munshi in vegetable market and is earning his livelihood from the said source. It is observed that the minor

respondents being legitimate children of the petitioner are entitled to be maintained by their father and the petitioner cannot absolve from his responsibility merely by stating that he has no sufficient source of income to maintain his children.

6. As order of maintenance allowance for Rs. 2000/- per month each is not exorbitant and would barely be enough to meet with the day to day needs of the minors and is based on proper appreciation of evidence which finding is well founded, therefore, constitutional petition against the same is not maintainable as no illegality in the impugned order is pointed out.

7. Learned counsel for the petitioner has failed to point out any misreading, non-reading or illegality in the impugned judgments. The assessment and appraisal of evidence is the function of the Family Court, which is vested with exclusive jurisdiction in this regard. This Court while exercising constitutional jurisdiction does not ordinarily reappraise the evidence produced before the Courts below to substitute findings of facts recorded by the said Courts, nor gives its opinion regarding quality or adequacy of the evidence unless any misreading, non-reading of record or any illegality is pointed out, which have not been established on the record, hence, there is no ground to set-aside the said findings of fact.

1. For what has been discussed above, this petition being devoid of any merits dismissed in limine.

(M.M.R.) Petition Dismissed

PLJ 2021 Lahore 142

Present: Masud Abid Naqvi, J.

GHULAM MUSTAFA etc.--Petitioners

versus

MUHAMMAD NAZIR--Respondent

C.R. No. 67657 of 2017, decided on 9.10.2019.

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

-----S. 115--Specific Relief Act, (I of 1877), Ss. 42 & 54--Suit for declaration, permanent and mandatory injunction--Dismissed--Appeal--Accepted--Shamlat deh--Forcibly blockage of passage--Entitlement for using of passage--Appearance of local commission in Court as evidence--Non-supporting of version of petitioners by DWs--Challenge to--Depositions of DW’s are against factual position and DW’s have not supported version of petitioners/ defendants--Appellate Court has properly perused pleadings, statements of PW’s and DW’s as well as documentary evidence by discussing in detail and thereafter reached at conclusion regarding controversy--Hence, findings of appellate Court are maintained upheld--With respect to interference in findings of appellate Court where there is inconsistency between trial Court and appellate Court--Appellate Court has thoroughly examined entire evidence of parties and thereafter reached at conclusion regarding controversy--Neither any misreading or non-reading of evidence on record nor any infirmity, legal or factual, has been pointed out in impugned judgment and decree passed by learned appellate court--Revision petition was dismissed. [Pp. 144] A, B & C

Malik Muhammad Azam Awan, Advocate for Petitioners.

Mr. M. Mushtaq Ahmed Dhoon and Mrs. Naila Mushtaq Dhoon, Advocates for Respondent.

Date of hearing: 9.10.2019.

Order

Brief facts of the present revision petition are that the respondent/plaintiff filed a suit for declaration alongwith permanent and mandatory injunction against the petitioners/defendants with the averments that he is owner in possession of the suit land and he is residing in the house after raising construction over Shamlat Deh. He is using the street as passage and there is no other way available for the respondent/plaintiff. The petitioners/defendants, who are neighbourers of the respondent/plaintiff forcibly blocked the passage and when the respondent/plaintiff asked the petitioners/defendants not to block the way of respondent/plaintiff they refused to accord with the demand of plaintiff, hence, the suit. The petitioners/defendants contested the suit by filing written statement and by raising legal as well as factual objections. Out of divergent pleadings of the parties, issues were framed by the learned trial Court. The parties produced their respective evidence and after recording the same, learned trial Court dismissed the suit of the respondent/plaintiff vide judgment and decree dated 07.02.2017. Feeling aggrieved, the respondent/ plaintiff filed an appeal and the learned Additional District Judge vide judgment and decree dated 06.06.2017 decreed the suit of the respondent/plaintiff while accepting the appeal. Being dissatisfied, the petitioners/defendants has filed the instant Revision Petition and challenged the validity of the judgment and decree dated 06.06.2017 passed by the learned Appellate Court.

1. I have heard the arguments advanced by the learned counsel for the parties and perused the record.

3. There is no denial of the fact that the respondent/plaintiff was claiming his entitlement to use the passage on the land of Shamlat Deh which can legally be used by all the inhabitants of the village under the law. The Tehsildar/local commission appeared before the Court as PW-3 and deposed that the parties are using the passage for the last 30 years and there is no alternate passage for the respondent/plaintiff for going to his own home. The depositions of DW’s are against the factual position and the DW’s have not supported the version of the petitioners/defendants. The learned appellate Court has properly perused the pleadings, statements of the PW’s and DW’s as well as documentary evidence by discussing in detail and thereafter reached at the conclusion regarding the controversy. Hence, the findings of learned appellate Court are maintained upheld.

4. With respect to interference in the findings of appellate Court where there is inconsistency between the trial Court and appellate Court, the Hon’ble Supreme Court of Pakistan in a case reported as Amjad Ikram vs. Mst. Asiya Kausar (2015 SCMR 1) held that:

“Even otherwise, in case of inconsistency between the learned and the appellate Court, the latter must he given preference in the absence of any cogent reason to the contrary, as has been held by this Court in judgements reported as Madan Gopal and 4 other vs. Maran Bipari and 3 others (PLD 1969 SC 617 and Mohammad Nawaz through LRs vs. Haji Mohammad Baran Khan through LRs and others (2013 SCMR 1300)

5. Learned appellate Court has thoroughly examined the entire evidence of the parties and thereafter reached at the conclusion regarding the controversy. Neither any misreading or non-reading of evidence on record nor any infirmity, legal or factual, has been pointed out in the impugned judgment and decree passed by the learned appellate Court. Therefore, this revision petition is dismissed.

(Y.A.) Revision petition dismissed

PLJ 2021 Lahore 144 (DB)

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

MUHAMMAD QAYYUM--Appellant

versus

HABIB BANK LIMITED--Respondent

F.A.O. No. 291 of 2014, decided on 30.04.2019.

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

----Ss. 12 & 22--Suit for recovery of amount was ex-parte decree--Filing of application for setting aside ex-partedecree--Dismissed--Challenge to--Neither appellant has mentioned his address in application under Section 12 of FIO, 2001 nor taken any specific stance regarding change of address or address where he was allegedly residing at time of issuance of process of Court--It is further transpired that all four modes of service were adopted as per address of appellant given in his documents submitted before respondent-bank at time of availing running finance facility--Judge Banking Court, after examining record, rightly dismissed application under Section 12 of FIO, 2001--Counsel for appellant has failed to point out any illegality or legal infirmity in impugned order, therefore, no interference is warranted--Appeal was dismissed. [P. 146] A & B

Mr. Zain, Advocate, vice Mian Zaheer Ahmad, Advocate for Appellant.

Date of hearing: 30.04.2019.

Order

Through instant first appeal against order filed under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance (“FIO”), 2001, appellant has assailed order dated 08.04.2014, passed by learned Judge Banking Court-II, Lahore, whereby appellant’s application under Section 12 of the FIO, 2001, for setting aside ex-parte judgment and decree dated 30.01.2010, was dismissed.

1. Brief facts of the case are that respondent-bank instituted suit for recovery of Rs. 20,21,257.43 against the appellant, claiming therein that appellant availed running finance facility against the security of hypothecation of stock as well as mortgage of properties, but failed to discharge liability under the agreement for financing. The suit was ex parte decreed videjudgment & decree dated 30.01.2010. Appellant moved an application under Section 12 of the FIO, 2001, for setting aside aforesaid ex parte judgment & decree, which was contested by respondent-bank by filing written reply. Learned Judge Banking Court, after hearing the arguments of learned counsel for the parties, dismissed said application vide impugned order dated 08.04.2014. Hence, this appeal.

2. Learned counsel for appellant submits that due to change of appellant’s address, he could not be served, therefore, impugned ex parte judgment & decree dated 30.01.2010 was liable to be set aside. In the end, he submits that impugned order is not sustainable in the eye of law.

3. Heard. Available record perused, 5. Perusal of record reveals that neither the appellant has mentioned his address in application under Section 12 of the FIO, 2001 nor taken any specific stance regarding change of address or the address where he was allegedly residing at the time of issuance of process of Court. It is further transpired that all the four modes of service were adopted as per the address of appellant given in his documents submitted before the respondent-bank at the time of availing running finance facility. Learned Judge Banking Court, after examining the record, rightly dismissed the application under Section 12 of the FIO, 2001 vide impugned order dated 08.04.2014, operative part whereof is reproduced hereunder:-

“It is amazing to note that the present applicant/ judgment debtor has not given his address on this application, which is a material concealment of facts. He has shown coming to the knowledge of the ex-parte decree through notice under Order 21 Rule 66 CPC. I have examined the address of the applicant given on the notices under Order 21 Rule 66 CPC, which is same as given in the plaint and the summons issued for service of the applicant/defendant, it is further noticed that the all four methods of securing service of applicant/defendant have been adopted in accordance with the address of the present applicant given in his documents submitted before the plaintiff bank for securing finance facility. The applicant has not taken any stance regarding change of address and has not mentioned the address where he was allegedly residing at the time of issuance of process of Court, Therefore, the application in hand has no force, hence, the same is dismissed “

6. Learned counsel for appellant has failed to point out any illegality or legal infirmity in the impugned order, therefore, no interference is warranted.

1. Resultantly, this appeal, being devoid of any merit, is hereby dismissed in limine with no order as to costs.

(MMR) Appeal dismissed

PLJ 2021 Lahore 147

Present: Muhammad Farrukh Irfan Khan, J.

ISHTIAQ AHMAD--Petitioner

versus

ZONAL HEAD, STATE LIFE OF INSURANCE CORPORATION OF PAKISTAN etc.--Respondents

W.P. No. 81313 of 2017, decided on 25.2.2019.

Sacked Employees (Reinstatement) Act, 2010--

----Ss. 2(f)(i)(iv), 3 & 4--Constitution of Pakistan, 1973, Art. 199--Appointment & promotion as area manager--Termination of service--Implementation of Section 4(g)--Challenge to--It is an admitted fact that against inaction of respondent for reinstatement in service under Act some of colleagues of petitioners filed writ petitions, which were allowed by this Court by way of judgment reported as NazarMuhammad Warraich and 7 others vs. Zonal Head, State Life Insurance Corporation of Pakistan, Sialkot and another (2017 PLC (C.S) 685--All objections/defence raised in this writ petition have been thoroughly dealt with by this Court in said reported judgment--Against said judgment respondents preferred Intra Court Appeal which was dismissed by Division Bench of this Courtagainst said judgments has been declined by Hon’ble Apex Court--Counsel for respondents could not show that case of petitioner is different to that of petitioners in above reported judgment which has been upheld by Hon’ble Apex Court--Therefore, while accepting this writ petition, petitioner is also held entitled to get benefit of Section 4 of Act ibid--Petition was accepted. [Pp. 149 & 150] A & B

2017 PLC (C.S.) 685 ref.

Mr. Muhammad Yafis Naveed Hashmi Advocate for Petitioner.

Rana Zulfiqar Advocate for Respondents.

Date of hearing: 25.2.2019.

Order

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner seeks his reinstatement in service under the provisions of Sacked Employees (Reinstatement) Act, 2010 by way of this writ petition.

1. Learned counsel for the petitioner contends that the petitioner was appointed as Area Manger on 04,08.1996 in the respondent’s Corporation; that subsequently the services of the petitioner were terminated on 11.06.1998; that the petitioner falls in the definition of “sacked employee” as provided in Section 2(f)(i)(iv) of the Act ibid as such he filed the application for his reinstatement within the prescribed period of time as envisaged in Section 3 of the Act ibid that Section 4 of the Act clearly states that all sacked employees shall be re-instated in service and their service shall be regularized with effect from the date of enactment of this Act once the application is filed; that the respondents are not implementing Section 4(g) of the Act ibid; that some of the colleagues of the petitioner filed different writ petitions seeking their reinstatement in service under the Act ibid which were allowed by this Court by way of judgment reported as Nazar Muhammad Warraich and 7 others vs. Zonal Head, State Life Insurance Corporation of Pakistan, Sialkot and another (2017 PLC (C.S)685; that against the said judgment respondent’s Intra Court Appeal as well as CPLA has also been dismissed; that’ the petitioner is also entitled to the same relief.

2. On the converse, learned counsel for the respondents submits that the petitioner was not directly appointed as Area Manger in the year 1996 but his appointment to the said post was the result of promotion from Sale Representative to Sales Officer and then to Sales Manager, and finally to Area Manger; that the services of the petitioner were terminated due to poor performance and not on political basis as such said Act is not applicable to the petitioner’s case.

3. Arguments heard. Record perused.

5. It is an admitted fact that against inaction of the respondents for reinstatement in service under the Act ibid some of the colleagues of the petitioners filed writ petitions, which were allowed by this Court by way of judgment reported as Nazar Muhammad Warraich and 7 others vs. Zonal Head, State Life Insurance Corporation of Pakistan, Sialkot and another (2017 PLC (C.S) 685. All the objections/defence raised in this writ petition have been thoroughly dealt with by this Court in the said reported judgment. Against the said judgment the respondents preferred Intra Court Appeal which was dismissed by the. learned Division Bench of this Courtvide judgment dated 18.01.2016 passed in ICA No. 1781/15 and C.P. No. 405 to 411 of 2016 against the said judgments has been declined by the Hon’ble Apex Court vide order dated 05.05.2016 with the following observations:

“A quick glance at the above quoted provisions would reveal that legislature in its wisdom provided for reinstatement of employees who having been appointed in between 1st day of

November, 1993 to 30thd days of November, 1996 were dismissed, removed or terminated from services or given forced golden handshake during or after the period mentioned above. It did not draw a line of distinction between the employees sacked on account of poor performance and those sacked on account of political victimization. We cannot under any canons of interpretation read in, political victimization in the Act. Therefore, neither the argument of learned ASC that where the Act like the NRO does not conform to the mandatory provisions of the Constitution, it is non-est in the eye of law, therefore, claim of the respondents could not be enforced thereunder, is devoid of force unless of course, the Act or any of its provisions is declared as such. The argument that since poor performance is synonymous with misconduct, the respondents could not have approached the High Court for their reinstatement under the Act without having recourse to the Review Board is rather bizarre when the expression “misconduct” as defined in Act does not include “poor performance”. Having, thus, considered the view taken by the High Court appears to be correct. We don’t feel persuaded to interfere therewith unless of course the law has been declared ultra vires and non-est by this Court.”

6. Learned counsel for the respondents could not show that the case of the petitioner is different to that of the petitioners in the above reported judgment which has been upheld by the Hon’ble Apex Court. Therefore, while accepting this writ petition, the petitioner is also held entitled to get benefit of Section 4 of the Act ibid.

(M.M.R.) Petition Accepted

PLJ 2021 Lahore 149 (DB) [Multan Bench Multan]

Present: Tariq Saleem Sheikh and Sardar Muhammad Sarfraz Dogar, JJ.

ABDUL SATTAR FAROOQI--Petitioner

versus

NATIONAL ACCOUNTABILITY BUREAU through Director General Multan and 3 others--Respondents

W.P Nos. 7957 & 7673 of 2019, decided on 25.6.2019.

Constitution of Pakistan, 1973--

----Art. 199--National Accountability Ordinance, (XVIII of 1999), Ss. 9(a)(vi), 10(a), 18(g) & 24(b)--Post-arrest bail grant of--Allegations of fake appointment orders--Deeper appreciation of evidence--Basic elements of corruption and corrupt practice--Non-availability of concrete evidence--Further inquiry--Rule of consistency--Deeper appreciation of evidence is not permissible at bail stage but keeping in view role assigned to petitioners it is essential to see whether they were sole authority or at helm of affairs to make orders qua appointment or transfer etc.--We are unable to find out basic elements of an offence of corruption and corrupt practices in transaction in question within meanings of Section 9 (a) (vi) with Section 10 (a) of NAO, 1999 as there is no concrete evidence available with prosecution to point out that petitioners have derived any personal benefit--It is incumbent upon prosecution to collect ample incriminating material for exposing involvement of accused in corruption and corrupt practices which is inescapable and unpreventable--It is often seen that in NAB reference, role of each accused is separately delineated and call out to show his involvement bearing in mind incriminating material collected during investigation--There exists reasonable grounds for further inquiry into guilt of accused and in such an eventuality accused becomes entitled to bail as a matter of right but not grace--Liberty of an accused cannot be curtailed on basis of superfluous allegations--Commencement of trial could not come in way of grant of bail, if in opinion of Court, a case for further inquiry was made--Refusal of bail--This principle of criminal jurisprudence is based on a latin maxim, i.e. Sauce for goose sauce for gander--It is, therefore, quite clear that refusal of bail to a person in a case where he is entitled to its grant as of right, can only be justified on some statutory provision or on grounds strictly relatable to holding of a just and fair trial--Such refusal cannot be justified on any high principles of ethics or morality--No exceptional grounds exist to deprive petitioners from their liberty by refusing post-arrest bail--Petitions was allowed.

[Pp. 152, 153,154, 155 & 156] A, B, C, D, E, F & G

2016 PCr.LJ 79, 2012 SCMR 1137, 2012 SCMR 1237, 2014 SCMR 12 and PLD 1997 SC 545 ref.

Mr. M.A. Hayat Haraj, Advocate assisted by Mr. Amjad Mushtaq, Advocate for Petitioner (in W.P. No. 7957 of 2019).

Sh. Jamshed Hayat, Advocate for Petitioner (in W.P. No. 7673 of 2019).

Mr. Muhammad Javaid Iqbal Ansari, Special Prosecutor for NAB along with Umar Hayat, A.D./I.O.NAB.

Date of hearing: 25.6.2019.

Order

By this common order, we intend to dispose of above captioned two petitions being having similarity and commonality of question of facts and law. The petitioners namely, Abdul Sattar Farooqi (Accused No. 8 in the Reference) and Muhammad Tahir Shahzad (Accused No. 22 in the Reference), through their respective petitions, seek their release on post-arrest bail in Accountability Court Reference No. 17/2018-M lodged under Section 18 (g) read with Section 24 (b) of the National Accountability Ordinance, 1999, wherein they were arrayed as one of the accused.

1. Precisely, the facts necessary for adjudication of both these petitions are that upon receipt of a complaint referred by the Accountant General, Punjab against the officers/officials of District Accounts Office (DAO) and District Education Officer Bahawalnagar on the allegations of misappropriation/embezzlement of public exchequer by paying salaries, allowances, arrears etc. to the ghost/bogus employees, an inquiry was authorized in the matter, which was later on up-graded into investigationvide Letter No. NABM20170925100273/Inv/75 dated 05.03.2018 and consequently two Accountability Reference No. 17-M/2018 & 18-M/2018 were placed before the Judge Accountability Court Multan and the petitioners/ accused were sent to face the trial under Section 9(a)(iii)(iv)(vi) & (xii) of National Accountability Ordinance, 1999 (hereinafter referred as “NAO, 1999”) and schedule thereto.

2. Learned counsel for the petitioners submitted that as per lodgment against the petitioners, no offence whatsoever is made out under the penal provision of “NAO, 1999”. They added that NAB has exceeded its authority, while taking cognizance of the matter in issue. Learned counsel for the petitioners submitted that Muhammad Tahir Shahzad petitioner was arrested in execution of warrant of arrest on 21.7.2018 while Abdul Sattar Farooqi petitioner was arrested in execution of warrant of arrest on 22.6.2018 and since then they are in custody awaiting their trial. They added that it is an inalienable right of every accused to have an expeditious trial in order to avoid the protracted incarceration. Learned counsel contended that early conclusion of trial is not in sight and the petitioners are suffering behind the bars without their guilt being proved. Learned counsel submitted that post-arrest bail petition of co-accused namely Mukhtar Ahmad who was serving as Accounts Clerk has already been allowed by this Court vide order dated 08.05.2019. Learned counsel maintained that role of petitioners are at par with that of their co-accused, therefore, under the rule of consistency, the petitioners are also entitled to the concession of post-arrest bail.

3. Conversely, learned Special Prosecutor NAB vehemently resisted both the petitions and submitted that during the course of investigation the petitioners have been found fully involved in the crime. It is also argued vehemently that the petitioners’ case falls under special law, which does not recognize the grant of bail and because the provisions of Section 497, Cr.P.C. is not applicable therefore, the petitioners cannot be granted bail. Further maintains that the petitioners in connivance with their co-accused have caused loss of huge amount of Rs. 18,005,453/- to the National Exchequer; therefore, both the petitions are liable to be dismissed.

4. We have heard learned counsel for the petitioners as well as learned Special Prosecutor NAB and also perused the record.

5. It is quite evident from the available material that Muhammad Tahir Shahzad petitioner remained posted as Accounts Clerk at Dy. DEO (EE-W) Tehsil Chishtian from May 2014 to February 2018 and during his posting he processed Source-I Forms of six and Source-II Forms of five fake/bogus employees by affixing his initial. He in connivance with Shafiq Ather and Javed Iqbal was involved in preparation of fake/bogus documentations of appointment of illegal employees. He in assistance with Azhar Iqbal AAO also got issued salaries & adjustment bills of bogus/fake employees from DAO Bahawalnagar. During investigation, he got recorded statement under Section 164 Cr.P.C, wherein he admitted that he got prepared and entered ten class four employees on the basis of fake/bogus appointment orders after taking bribe from them. He also allegedly obtained amounts of adjustment bills which were credited in bank accounts of bogus/fake employees by DAO illegally.

6. Likewise, the allegation against the petitioner Abdul Sattar Farooqi is that he in connivance with other employees of District Accounts Officer, Bahawalnagar has caused loss to National exchequer to the tune of Rs. 11,683,923/-when he remained posted as Senior Auditor and Assistant Accounts Officer (AAO) at DAO, Bahawalnagar from 2006 to date. However, he remained on some training during 2008-09 and served AG (Punjab) Office, Lahore for three months in between that period. While posted at DAO, Bahawalnagar he performed different assignments including payroll section of Dy. DEO (EE-W), Tehsil Fort Abbas. He allegedly pre-audited 9x Source-I Forms of bogus/illegal employees (4x C-IV & 5x teachers) as AAO by affixing his initials/signatures and entered/punched data of 5x bogus employees in SAP in capacity of KPO, including date of 2x fake teachers namely Mehru Nisa and Fozia Khursheed. He also pre-audited Source-II Forms of 5x illegal/fake employees (4x C-IV) & 1 teacher), including adjustment bill of Manzoor Ahmed.

8. No doubt it is well settled proposition of law that deeper appreciation of evidence is not permissible at bail stage but keeping in view the role assigned to the petitioners it is essential to see whether they were the sole authority or at the helm of affairs to make orders qua appointment or transfer etc. Admittedly, Muhammad Tahir Shahzad petitioner remained posted as Accounts Clerk at Dy. DEO (EE-W), Tehsil Chishtian while Abdul Sattar Farooqi petitioner remained posted as Senior Auditor and Assistant Accounts Officers at DAO, Bahawalnager and they had no authority qua the appointment/ transfer of any employee while the authority and responsibility of DDO in matters of financial control is very vast as he or she has to deal with all financial transactions from inception of proposal to implementation. Specifically, in the matter of salaries and other bills related to allowances, adjustments, GP fund etc. of non-gazetted government employees (i.e. from BPS-01 to BPS-15) the concerned DDO is responsible to check each aspect of a bill and then forward the same to District Accounts Officer for processing under the rules. The DDO concerned is also expected to reconcile the expenditures incurred on monthly basis with the District Accounts Office, so that any kind of misappropriation in public exchequer could be avoided. However, at this stage we are sanguine that guilt of the petitioners cannot be decided whether they are involved in the offence of corruption or corrupt practices. To a specific question asked by us to the Special Prosecutor, NAB and the Investigating Officer whether any gratification or any abnormal bank transaction or activity was noted in their bank accounts or any asset was acquitted by the petitioners in their own name or ostensibly, the answer of the I.O. was in negative that no such incriminating material was collected or found available against them. Even otherwise, after examining the material available on the record and gist of allegations against the petitioners, we are of the considered view that case of the petitioners is at par with their co-accused namely Mukhtar Ahmad who has already been granted post-arrest bail vide order dated 8.5.2019 in W.P. No. 5503 of 2019, therefore, in view of principle of consistency, the petitioners are entitled to the concession of same relief.

9. Apart from the above, we are unable to find out the basic elements of an offence of corruption and corrupt practices in the transaction in question within the meanings of Section 9 (a) (vi) read with Section 10 (a) of the NAO, 1999 as there is no concrete evidence available with the prosecution to point out that the petitioners have derived any personal benefit. A glimpse to Section 9 of the NAO, 1999 allude to gist of acts of corruption and corrupt practices which makes a holder of a public office or any other person liable to be punished. The acts include acceptance of any gratification directly or indirectly as the motive or reward as specified under Section 161, P.P.C. for doing or forbearing to do any official act in exercise of its official function favour or dis-favour to any person or rendering any service or disservice to any person or if he accepts or obtains or offers any valuable thing without consideration from any person or if dishonestly or fraudulently misappropriate or otherwise converts of his own use or if he by corrupt, dishonest or illegal means obtains for himself or for his spouse or dependents or property or pecuniary advantage or if he or any of his dependents or benemidars owns and possesses right or title in any asset. Whereas, the Sub-clause (iv) of clause (a) of Section 9 pertains to misusing of authority by a holder of a public office or any other person so as to gain any benefit or favour, for himself or any other person etc. This Section is very exhaustive by itself but we have austerely quoted the nucleus of the acts which may be considered involvement of holder of a public office or any other person in corruption and corrupt practices. The purpose of highlighting the salient features is to accentuate that during course of inquiry and investigation, it is incumbent upon prosecution to collect ample incriminating material for exposing the involvement of accused in corruption and corrupt practices which is inescapable and unpreventable. It is often seen that in NAB reference, the role of each accused is separately delineated and call out to show his involvement bearing in mind the incriminating material collected during investigation. Reliance is placed on “Sarfraz Ahmed and another vs. The Chairman National Accountability Bureau (NAB) through Chairman and others” (2016 P.Cr.L.J. 79).

10. There is yet another important aspect of the case that on the issue of pecuniary jurisdiction, learned High Court of Sindh at Karachi, in a case reported as “Rauf Bakhsh Kadri vs. The State” (2003 MLD 777), has held “the discretion of the Chairman, N.A.B. or an officer authorized by him to file a reference could be filed only when the Chairman or the Authorized Officer is satisfied that the amount involved is of large magnitude and resort to the facility of pre-bargaining to the accused would be in the national interest. In the absence of such satisfaction a case could only be triable under the ordinary law”. Similarly, learned High Court of Sindh at Karachi in C.P. No. D-1210 of 2016 “Amjad Hussain vs. Chairman NAB & another” regarding the pecuniary jurisdiction has held as under:

“41. This is because there may be cases falling below Rs. 100M which cannot be prosecuted by any other agency and as such rather than letting the culprit off scott free he/it should be prosecuted by NAB at the discretion of the Chairman. However in cases below Rs. 100M which can be dealt with by other agencies such as FIA, ACE we would expect NAB to send such ‘ cases to such alternate agencies for prosecution by virtue of [ Section 18 (d) of the NAO, which reads as under:--

11. After perusal of the above-quoted judgments, we are of the view that the amount involved in the instant matter is not of large magnitude as has been held in the above-referred judgments. Thus, in view of the above, principles enunciated in the judgments (Supra) and keeping in view the facts and circumstances of the instant case, we have no hesitation to hold that there exists reasonable grounds for further inquiry into the guilt of the accused and in such an eventuality the accused becomes entitled to bail as a matter of right but not grace. The liberty of an accused cannot be curtailed on the basis of superfluous allegations. Reliance in this respect can be placed on “Ehsan Ullah vs. The State” (2012 SCMR 1137) and “Ikram-ul-Haq vs. Raja Naveed Sabir and others” (2012 SCMR 1273).

12. Muhammad Tahir Shahzad petitioner was arrested in execution of warrant of arrest on 21.7.2018 while Abdul Sattar Farooqi petitioner was arrested in execution of warrant of arrest on 22.6.2018 and despite lapse of considerable time i.e. more than a year there is no possibility of early conclusion of trial in the instant case, so the petitioners cannot be kept behind the bars for an indefinite period on the basis of an offends which is yet to be established by the prosecution. Even otherwise, the commencement of trial could not come in the way of grant of bail, if in the opinion of the Court, a case for further inquiry was made. Reliance is placed on “Syed Khalid Hussain Shah v. The State” (2014 SCMR 12).

13. Coming to contention that the petitioners are not entitled to the grant of bail as they are involved in a case falling under the special law is concerned, the crime is always a violation of law irrespective of the fact that it falls under the Special Law or Ordinary Law, however, the Courts without considering gravity and severity of the crime should have to evaluate the material & the role assigned to the perpetrator for the purpose of grant refusal of bail. This principle of criminal jurisprudence is based on a latin maxim, i.e. Sauce for the goose sauce for the gander. It is, therefore, quite clear that refusal of bail to a person in a case where he is entitled to its grant as of right, can only be justified on some statutory provision or on grounds strictly relatable to the holding of a just and fair trial. Such refusal cannot be justified on any high principles of ethics or morality. It may be stated here that both under the Anglo-Saxon concept of criminal jurisprudence as well as Islamic dispensation of criminal justice, the initial presumption of innocence of an accused charged with a criminal offence is not dislodged until he is proved guilty. Article 9 of the Constitution of Islamic Republic of Pakistan, 1973, also provides that a person will not be deprived of his life and liberty except in accordance

with the law. Therefore, bail cannot be refused in a case by way of punishment. Reliance is placed on “Imtiaz Ahmad v.The State” (PLD 1997 SC 545).

14. In view of above discussion, we are in agreement that no exceptional grounds exist to deprive the petitioners from their liberty by refusing the post-arrest bail. Consequently, both these petitions are allowed and both the petitioners namely, Abdul Sattar Farooqi and Muhammad Tahir Shahzad are admitted to bail subject to their furnishing bail bonds in the sum of Rs. 5,00,000/- (five lac rupee) each with two sureties each in the like amount to the satisfaction of the learned trial Court. The petitioners shall appear before the learned trial Court on each and every date till final disposal of the instant prosecution case.

1. Needless to observe that the observations made hereinabove are only tentative in their nature and are strictly confined to the extent of grant of instant bail.

(Y.A.) Petition allowed

PLJ 2021 Lahore 156

Present:Sardar Muhammad Sarfraz Dogar, J.

Zakir GHAYYUR SABIR--Petitioner

versus

GOVERNMENT OF THE PUNJAB, through Additional Secretary (IS) Home Department, Punjab, Lahore and 6 others--Respondents

W.P. No. 290 of 2021, decided on 12.1.2021.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 188--Maintenance of Public Order, 1960, Ss. 3(1), 6 & 13(1)--Registration of FIR--Petitioner was on bail--Issuance of detension order--Allegation of objectionable speech and hurt religious feelings of other sects--Justification of detension order--Liberty of citizens--Direction to--It is an admitted position that a criminal case has already been registered against petitioner and petitioner has been granted bail in such registered case--Criminal activity of petitioner is, thus, already subject matter of such criminal case and almost on same allegation, his detention is not justified in law as same would amount to vexing petitioner twice--Respondents authorities have failed to justify as to how petitioner was acting in a manner prejudicial to integrity, security or defence of Pakistan, or public order or maintenance of supplies of services--Liberty of citizens cannot be curtailed merely on basis of some presumptions--It becomes crystal clear that when petitioner has obtained bail in criminal case registered against him, respondents in order to frustrate proceedings before competent Court of law has issued impugned order, which is liable to be set aside--Respondents/authorities are directed to act in accordance with law in future while issuing such type of detention orders keeping in view fact that detention order under Section 3(1) of West Pakistan Maintenance of Public Order Ordinance, 1960 against a person against whom criminal proceedings were already pending, is violative of Article 13(1) of Constitution--Petition was disposed of.

[Pp. 158] A, B, C & D

PLD 2020 Lah. 468 ref.

M/s. Azam Nazir Tarrar, Nadeem Ahmad Tarrar and Awais Idrees Maan, Advocates for Petitioner.

Mr. Fiaz Ahmed Basra, AAG for State.

Date of hearing: 12.1.2021.

Order

By filing the instant petition, the petitioner has assailed the vires of order dated 28.11.2020 passed by the Respondent No. 4 for detention of petitioner being illegal, against the law, facts as well as in contravention to the Section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960.

1. Heard. Record perused.

2. Brief facts of the case are that the petitioner is resident of Behal Tehsil and District Bhakkar and is a religious preacher. On 26.11.2020, a criminal case bearing FIR No. 365/2020, under Section 188, PPC read with Section 16 of Maintenance of Public Order Ordinance, 1960 and Section 6 of The Punjab Sound Systems (Regulation) Act, 2015 was registered against him with the Police Station Behal Distract Bhakkar with the allegation that on 24.11.2020 the petitioner hold a Majlis in Imam Bargah without permission and during the Majlis he delivered objectionable speech and hurt the religious feelings of the other sects. When the petitioner has sought the premium of bail in such criminal case the DPO Bhakkar/ Respondent No. 5 on the basis of same allegations forwarded a Letter No. 4314/SB dated 26.11.2020 to the Deputy Commissioner/respondent No. 4, who on the basis of said letter issued detention order dated 28.11.2020 against the petitioner for a period of 30 days.

4. Apart from the above, it is noticed that it is an admitted position that a criminal case has already been registered against the petitioner and the petitioner has been granted bail in such registered case. The criminal activity of the petitioner is, thus, already subject matter of such criminal case and almost on the same allegation, his detention is not justified in law as the same would amount to vexing the petitioner twice. Such detention order under Section 3(1) of The West Pakistan Maintenance of Public Order Ordinance, 1960, against a person against whom some criminal proceedings are already pending, is also violative to Article 13(a) of the Constitution. The respondents authorities have failed to justify as to how the petitioner was acting in a manner prejudicial to the integrity, security or defence of Pakistan, or public order or maintenance of supplies of services. Liberty of citizens cannot be curtailed merely on the basis of some presumptions.

1. This Court in the case of similar nature reported as Abdul Rasheed Bhatti v. Government of Punjab (PLD 2020 Lahore 468) has held that the liberty of every citizen is to be protected and guaranteed under Articles 4, 9, 10 and 15 of the Constitution of the Islamic Republic of Pakistan, 1973 and the State has no jealously safeguard liberty of every citizen wherever he may be; and any action without sufficient cause depriving or restricting liberty of a citizen is not envisaged by the Constitution of the country and any such action taken by the Government or any of its functionary is not immune from scrutiny of High Court in exercise of its power under Article 199 of the Constitution.

6. In view of above discussion, it becomes crystal clear that when the petitioner has obtained bail in the criminal case registered against him, the respondents in order to frustrate the proceedings before the competent Court of law has issued the impugned order, which is liable to be set aside. Order accordingly. However, the respondents/authorities are directed to act in accordance with law in future while issuing such type of detention orders keeping in view the fact that the detention order under Section 3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960 against a person against whom criminal proceedings were already pending, is violative of Article 13(1) of the Constitution.

1. With the above observations, the instant petition is disposed of.

(Y.A.) Petition disposed of

PLJ 2021 Lahore 159[Multan Bench, Multan]

Present: Mujahid Mustaqeem Ahmed, J.

WAHID BUKHSH and others--Petitioners

versus

ADDITIONAL DISTRICT JUDGE and others--Respondents.

W.P. No. 3191 of 2020, decided on 3.3.2020.

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

----Ss. 12(2), O.IX R. 13--Constitution of Pakistan, 1973, Art. 199--Pre-emption suit--Ex-parte decreed--Filing of application against ex-parte decreed--Dismissed--Appeal--Application for impleadment as party during pendency of application for setting ex-parte decree--Dismissed--Availability of legal remedy--Attaining of finality of order--Concurrent findings--Entitlement for equitable relief--Challenge to--Legal remedy available to petitioners/judgment debtors was only to file revision petition in terms of Section 115 C.P.C which was not availed, as a consequent of which ex-parte judgment and decree passed by Civil Judge, Kot Addu attained finality--Petitioners preferred to re-agitate matter before learned trial Court by moving application under Section 12(2) C.P.C mainly on ground that ex- parte decree was outcome of fraud, mis-representation, collusion and as such ineffective upon their rights--No ground exists to interfere, in exercise of Constitutional Jurisdiction of this Court, in concurrent findings passed by Courts below--Even otherwise, in view of above noticed peculiar circumstances of this case, to my view, petitioners have not approached this Court with clean hands and are re-agitating issues which stood already settled by Courts of competent jurisdiction only due to changes in pre-emption law--As per settled norms of exercise of jurisdiction under Article 199 of Constitution petitioners are not entitled to any equitable relief--As such petitioners have failed to point out that impugned order is illegal, perverse or without jurisdiction--Petition was dismissed.

[Pp. 161, 165 & 166] A, B, C & D

PLD 2003 SC 979, 2016 YLR (Pesh.) 873 and 2019 SCMR 919 ref.

Mr. Mumtaz Fazal Mirza, Advocate for Petitioners.

Date of hearing: 3.3.2020.

Order

By filing this petition in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution) the petitioners have assailed legality and propriety of orders dated 14.11.2016 and 12.11.2019 passed by learned Courts below, whereby petitioners’ application filed in terms of Section 12(2), C.P.C moved on 1.10.2000 against the ex-parte judgment and decree dated 26.4.1976 passed by learned Civil Judge, Kot Addu, stood dismissed, mainly on the grounds of being against law, facts outcome of mis-reading and non-reading of evidence and as such not sustainable.

1. It has been contended by learned counsel for the petitioners that the petitioners were not served with the process and ex-parte decree in pre-emption suit was passed on 26.4.1976 by learned Civil Judge, Kot Addu, that too without recording evidence (just on the basis of report of local commission regarding market price of suit property). However, learned counsel for the petitioners concedes that earlier application in terms of Order IX Rule 13, C.P.C seeking setting aside said ex-parte judgment and decree filed by predecessor-in-interest of proforma respondents/co-defendants No. 13 to 19, thereinafter to be referred as proforma respondents) of the petitioners/vendees was dismissed by learned Civil Judge Kot Addu vide order dated 6.11.1989 and even (alleged) joint appeal (filed by predecessor-in-interest of the petitioners and other co-defendant/vendee) against that order had been dismissed and thereafter the petitioners moved the application in terms of Section 12(2), C.P.C on 1.10.2000.

2. Learned counsel has been heard at length and documents appended with this petition gone through in the light of submissions made by him.

3. Admittedly after passing ex-parte judgment and decree in favour of Allah Dewaya, predecessor-in-interest of the contesting Respondents Nos. 3 to 12 (hereinafter to be referred as contesting respondents), Fazal Hussain, one of the judgment debtors (now represented by proforma respondents) moved a petition in terms of Order IX Rule 13, C.P.C which was contested by the decree holder/predecessor-in-interest of contesting respondents which, after framing issues and recording evidence of the parties, was dismissed by learned Civil Judge Kot Addu vide order dated 6.11.1989 believing evidence of the contesting respondents qua due service of Kora Khan, (predecessor-in-interest of present petitioners) (who even after passing of an exparte decree has not come forward to challenge the same independently or with Fazal Hussain, other judgment debtor) and also due service of said Fazal Hussain.

Record further reveals that during pendency of said application for setting aside ex-parte decree, moved by Fazal Hussain, some of the parties to the lis approached learned trial Court for impleading legal heirs of Kora Khan in the array of respondents, which was contested by the respondent/decree holder and was, however, dismissed.

5. Ultimately the main petition for setting aside ex-parte decree was dismissed by learned trial Court vide orders dated 6.11.1989. Thereafter said Fazal Hussain along with the petitioners/legal heirs of Kora Khan jointly filed an appeal against that order but could not succeed and their appeal was dismissed by learned Addl. District Judge, Muzaffargarh vide judgment and decree dated 14.6.1990. In the given circumstances legal remedy available to the petitioners/judgment debtors was only to file revision petition in terms of Section 115, C.P.C which was not availed, as a consequent of which ex-parte judgment and decree dated 26.4.1976 passed by learned Civil Judge, Kot Addu attained finality. The grounds taken in the petition under Section 12(2), C.P.C could have been taken in that revision petition but the petitioners preferred to re-agitate the matter before learned trial Court by moving application under Section 12(2), C.P.C on 1.10.2000 mainly on the ground that ex- parte decree dated 26.4.1976 was outcome of fraud, mis-representation, collusion and as such ineffective upon their rights. The main grounds of attack in that application were: (a) predecessor-in-interest of the present petitioners was not served with the process; (b) the pre-emption money in ex-parte decree was not fairly fixed by learned trial Court; (c) the decree was based on the report of local commission but the predecessor-in-interest of the present petitioners was not summoned to join proceedings of local commission; (d) the Court-fee was not deposited by the pre-emptor/predecessor-in- interest of contesting respondents; and lastly (e) that 1/5th of pre-emption money was not deposited within time frame given by the Court. The petition/application was hotly contested by contesting respondents. To resolve controversy between the parties following issues were framed:

1. Whether the application is not maintainable in its present form? OPR.

2. Whether the application is time barred? OPR.

2-B. Whether the petitioners filed an application for cancellation of decree which was dismissed vide dated 6.11.89 and this application is not maintainable? OPR.

2-C. Whether the applicants are stopped to file this application by their words and conduct? OPR.

2-D. Whether the particulars of this application are incomplete thus the application is not maintainable? OPR.

1. Whether the decree dated 26.4.1976 is liable to be set aside as prayed for? OPA.

2. Relief.

The revision petition filed by the petitioners against the order accepting application under Section 7 Rule 11 and rejecting application under Section 12(2), C.P.C was accepted and matter was remanded by learned Addl. Distt. Judge while framing following additional issues:

2-E. Whether the suit was hit by the provision of Section 22 of Pre-emption Act, 1913? OPA.

2-F. If the above issue is answered in affirmative, whether the learned Civil Judge had jurisdiction to pass the impugned judgment and decree. If so, the impugned judgment and decree was void ab ignition? OPA.

2-G. If the above issue is proved in affirmative, whether the question of limitation arises against the judgment and decree, which is void ab ignition? OPA.

1. After recording evidence of the parties learned trial Court vide impugned order dated 14.11.2016 while recording issue-wise finding dismissed application of the petitioners. The revision petition preferred by the petitioners was dismissed by learned Addl. Distt. Judge Kot Addu vide order dated 22.4.2019. As such by approaching this Court in Constitutional jurisdiction, the petitioners have assailed legality, propriety of the aforesaid judgments whereby their application under Section 12(2), C.P.C was dismissed.

2. Admittedly, the grounds taken in subsequent application in terms of Section 12(2), C.P.C were the same which were taken by Fazal Hussain, predecessor-in-interest of proforma respondents/one of the judgment debtors in application for setting aside ex-parte judgment and decree and the same were dealt with after recording evidence and issue wise findings against said petitioner/judgment debtor. Thereafter said Fazal Hussain along with the present petitioners filed an appeal against that order and the learned Appellate Court (Addl. Distt. Judge, Muzaffargarh) dealt with each and every plea of the appellants taken in that appeal. Worth appreciable that Ground No. 6 of memo. of appeal was to the effect that limitation for setting aside decree in terms of Section 12(2), C.P.C was three years. In those proceedings as observed by learned Courts below Allah Bukhsh Petitioner No. 1(c), one of the legal heirs of Khora Khan, appeared in witness box but his testimony qua non-service of petitioners predecessor-in-interest in the suit was disbelieved.

3. Whereas in support of application in terms of Section 12(2), C.P.C in affirmative evidence only official witness Wazir Ali, Patwari was produced by the petitioners and remaining plethora of documentary evidence in earlier round of litigation was tendered in evidence. However, at the stage of evidence in rebuttal petitioners No. 1(a) and 1(c), namely, Wahid Bakhsh and Allah Bakhsh appeared as AWs 1 and 2 respectively (Worth-mentioning that Wazir Ali, Patwari already stood examined as AW-1 and as such there is duplicacy of Reference No. of these witnesses) and reiterated their stance taken in the petition moved in terms of Section 12(2), C.P.C. Both of them claimed that their father was not served with the process/summons in the pre-emption suit and as such ex-parte decree was outcome of fraud and mis-representation. Whereas Wahid Bakhsh as AW 1 conceded that at the time of purchase of land under pre-emption, he was minor and this fact alone shatters authenticity of his testimony. Allah Bukhsh, AW 2 during cross-examination deposed that he has not appeared as AW in the Court of Syed Bahadur Ali Shah, the then learned Civil Judge Kot Addu, to support the petition for setting aside ex-parte decree. Statement of this witness as AW 1 recorded on 2.6.1986 by learned Civil Judge Kot Addu is Ex.R.14. During cross-examination (As per Ex.R.14) this witness conceded that Allah Dewaya (decree holder in pre-emption suit) took possession of decreed property three years after sale, meaning thereby that said Allah Dewaya got possession of suit property at the most in the year 1978.

Whereas in rebuttal of the above evidence, the contesting respondents produced Wazir Ali Revenue Patwari as RW.1 (already examined as AW.1). Allah Bachaya Tabbassum Treasurer (RW.3) and Ghulam Farid, Naib Nazir (Civil Court) as RW.4 to prove timely payment of sale consideration in the light of ex-parte decree, whereas Jafar Khan one of the respondents, appeared as RW.2 and negated the version of the petitioners. Moreover at the cost of repetition it is observed that the grounds taken in this petition were the grounds of attack in earlier application for setting aside ex-parte decree which was dismissed and appeal against that order also could not succeed. Thus any subsequent application on the same subject is hit by the provisions of Section 22 of the C.P.C. (Res Judicata). Reliance is placed on case Haji Muhammad Boota and others v. Member (Revenue) Board of Revenue, Punjab and others (PLD 2003 S.C. 979), Aizazullah and another vs. Provincial Government (K.P.K) through Secretary Education and others [2016 YLR 1873 Peshawar (D.B.)].

1. Moreover the grounds which were pressed before learned Courts below and this Court at the most might be remotely hinting some illegality in the proceedings of learned trial Court while passing ex-parte decree but the same do not fall within the purview of fraud, mis-representation or want of jurisdiction, the very basis to invoke jurisdiction of the Civil Court under Section 12(2), C.P.C. for brushing aside decree of the learned trial Court. It is ground reality that with the afflux of time, pre-emption law has met radical changes, as is known to the litigant public as well as members of legal fraternity and obviously the same has prompted the petitioners to prolong the litigation so as to deprive the decree holder/pre-emptor from fruit of the decree which stood already implemented and possession of pre-empted property delivered to him since long. As such the petitioners have not approached the civil Court with any bona fide and clean hands.

2. The version of the petitioners that before moving the application in terms of Section 12(2), C.P.C. they had no knowledge of ex-parte decree, that they along with other judgment debtor (Fazal Hussain) have not filed appeal before learned Addl. Distt. Judge, Muzaffar Garh and in post remand proceedings Allah Bakhsh (one of the petitioners) has not appeared in witness box in support of petition for setting aside ex-parte decree is not believable. The litigation initiated by Fazal Hussain, judgment debtor in which the petitioners joined at appellate stage as appellants ended on 14.6.1990 by dismissal of their appeal. Thereafter they kept mum and in 2nd round of litigation in the year 2000 moved application in terms of Section 12(2), C.P.C. Presumption of truth is attached to Court proceedings. Strongest and unimpeachable evidence was required to displace such presumption but no such evidence has come on record. Reference in this regard may be made to cases reported as Waqar Jalal ansari v. National Bank of Pakistan and another (2008 SCMR 1611), Fayyaz Hussain v. Akbar Hussain and others (2004 SCMR 964), Muhammad Ramzan v. Lahore Development Authority, Lahore (2002 SCMR 1336), Zaheer Afzal Chatha v. National Accountablility Bureau through Director-General and another [2018 PCr.LJ Note 9 (Lahore)], and Sheraz Pervaiz Mustafa v. The Special Judge (Rent), Lahore and others [2019 MLD 2095 (Lahore)]. It does not appeal to a prudent mind that the decree holder after getting fruit of decree will resort to frivolous litigation for setting aside said decree. Obviously the petitioners and Fazal Hussain another judgment debtor had joint interest in the suit property and said Fazal Hussain moved application for setting aside ex-parte decree. During pendency of that petition even petition for impleading present petitioners (legal heirs of Kora Khan) was moved and contested (as is established from reply to that petition at page 228 (Ex.R.15) of this petition, but order on said petition has not been brought to the notice of the Court. However, record speaks conspicuously that after dismissal of the petition for setting aside ex-parte decree, the petitioners and said judgment debtor jointly filed an appeal but the same was dismissed and as such the application in terms of Section 12(2), C.P.C. was patently time barred, so was rightly concluded by the learned Courts below. As such the petitioners were fully aware of the above ex-parte decree right from the year of its issuance and in any case on delivery of possession to the decree holder. Reliance in this regard may be placed on cases Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 SC 212), Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others (PLD 2014 SC 167) and Muhammad Islam v. Inspector-General of Police, Islamabad and others (2011 SCMR 8). In the first mentioned case, the Hon’ble Supreme Court at page 227 has observed as under:

“5. .... The object of the law of limitation and the law itself, prescribing time constraints for each cause or case or for seeking any relief or remedy has been examined by the Courts in many a cases, and it has been held to be a valid piece of legislation, and law of the land. It is “THE LAW” which should be strictly construed and applied in its letter and spirit; and by no stretch of legal interpretation it can be held that such law (i.e. limitation law) is merely a technicality and that too of procedural in nature. Rather from the mandate of Section 3 of the Limitation Act, it is obligatory upon the Court to dismiss a cause/lis which is barred by time even though limitation has not been set out as a defence. And this shows the imperative adherence to and the mandatory application of such law by the Courts. The said law is considered prescriptive and preventive in nature and is held to mean and serve as a major deterrent against the factors and the elements which would affect peace, tranquility and due order of the State and society. The law of limitation requires that a person must approach the Court and take recourse to legal remedies with due diligence, without dilatoriness and negligence and within the time provided by the law; as against choosing his own time for the purpose of bringing forth a legal action at his own whim and desire. Because if that is so permitted to happen, it shall not only result in the misuse of the judicial process of the State, but shall also cause exploitation of the legal system and the society as a whole. This is not permissible in a State which is governed by law and Constitution. And it may be relevant to mention here that the law providing for limitation for various causes/reliefs is not a matter of mere technicality but foundationally of the “LAW” itself.”

11. As such no ground exists to interfere, in exercise of Constitutional Jurisdiction of this Court, in the concurrent findings passed by learned Courts below. Even otherwise, in view of above

noticed peculiar circumstances of this case, to my view, the petitioners have not approached this Court with clean hands and are re-agitating the issues which stood already settled by Courts of competent jurisdiction only due to changes in pre-emption law. As per settled norms of exercise of jurisdiction under Article 199 of the Constitution the petitioners are not entitled to any equitable relief. In this regard reliance can safely be placed on Chief Executive MEPCO and others v. Muhammad Fazil and others (2019 SCMR 919) in which the Hon’ble Supreme Court has held as under:

“5. .... where the Court or the Tribunal has jurisdiction and it determines specific question of fact or even of law, unless patent legal defect or material irregularity is pointed out, such determination cannot ordinarily be interfered with by the High Court while exercising jurisdiction under Article 199 of the Constitution ……”

As such the petitioners have failed to point out that the impugned order is illegal, perverse or without jurisdiction. The instant petition is, therefore, dismissed with costs Rs.25,000/- (Twenty Five thousand rupees).

1. Before parting with this matter I would like to bring on record my appreciation for invaluable efforts for research based legal assistance rendered by Mr. Muhammad Sher Abbas Awan, Addl. Distt. and Sessions Judge/Senior Research Officer of the Lahore High Court Lahore to this Court in the case in hand.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 166

Present:Farooq Haider, J.

SAJID ALI--Petitioner

versus

STATE and others--Respondents

W.P. No. 337 of 2021, decided on 12.1.2021.

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

----S. 561-A--Constitution of Pakistan, 1973, Art. 199--Criminal revision petition for recalling of order--Dismissed--Re-summoning of witness and exhibition of documents--Filling of lacuna--Opportunity for cross-examination--Veracity of evidence--Challenge to--It has been noticed that evidence, which has been allowed to be brought on record of case through orders (mentioned above), is otherwise essential for just decision of case and accused party certainly has right to challenge veracity of said evidence by way of cross-examination--Contention of counsel for petitioner that right/ benefit accrued in favour of accused has been taken away through impugned orders, is concerned, same does not hold water for prime reason that such approach may be adopted in civil lis but not in criminal case where approach of Court must be inquisitorial in nature--Documents are already available on file of case and similarly case property is also already existing”, has rightly passed impugned order and same has been rightly upheld by Addl. Sessions Judge, Vehari/Revisional Court--Needless to observe that petitioner/accused will be afforded sufficient opportunity through cross-examination for challenging veracity of said evidence--Therefore, impugned order passed by Addl. Sessions Judge, Vehari and order passed by SCJ (Criminal Division)/Magistrate Section 30, Vehari, are perfectly valid, well-reasoned and quite in accordance with “law, peculiar facts and circumstances” of case; hence, need no interference--Petition was dismissed.

[Pp. 169, 170, 174 & 175] A, B & C

2001 P.Cr.R. 548, PLD 1984 SC 95, 2001 SCMR 308 and PLD 2020 SC 617

Mahar Muhammad Akram Bangrath, Advocate for Petitioner.

M/s. Muhammad Waseem-ud-Din Mumtaz, Assistant Advocate General, Punjab and Ansar Yaseen, Deputy Prosecutor General, on Court’s call.

Date of hearing: 12.1.2021.

Order

Through instant petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 561-A, Cr.P.C., Sajid Ali (petitioner) has challenged the vires of order dated: 16.12.2020 passed by learned Addl. Sessions Judge, Vehari, whereby criminal revision petition filed by the petitioner for recalling of order dated: 26.10.2020 passed by learned SCJ (Criminal Division)/ Magistrate Section 30, Vehari, has been dismissed; relevant Paragraph No. 5 of said order dated 26.10.2020 is hereby reproduced:

“After hearing arguments advanced by learned counsel for parties and perusal of record, it reflects that statement of above said witness has already been recorded as PW-1. The documents which petitioner wanted to produce are available and attached with the file. The version of the petitioner is that documents i.e. complaint, form No. 2 were not exhibited during course of evidence recorded earlier, hence witness may be re- summoned and permission may be granted to produce the said documents accordingly. I am of the view that documents which petitioner wanted to produce are important, relevant and necessary for just decision of the case. If a document has not been produced in the evidence mistakenly during the course of recording evidence, then Court has discretion and authority to get re-summon the witness under Section 540, Cr.P.C. in order to get record his statement and grant him permission to produce said document in the interest of justice. I am of the view that it would not amount to fill the lacuna of the case by the prosecution. The case law produce by the accused is not relevant in circumstances because the facts stated in the case law produced by the accused were different from the instant case. In the light of above said discussion, I am of the view that application of the petitioner is genuine, hence same is accepted in the interest of justice and in consequence witness Mehfooz- ul-Haq is summoned under Section 540, Cr.P.C. to get record his evidence.”

Similarly, relevant Paragraph No. 5 of impugned order dated: 16.12.2020 is also reproduced for ready reference:

“Perusal of the record indicates that Mehfooz-ul-Haq complainant of the case got recorded his evidence as PW-1 but in his evidence, the complaint as well as documents prepared by the said complainant could not be get exhibited, that application was moved for re-summoning of the said witness in order to get exhibited the said document which was accepted by the learned trial Court. Feeling aggrieved, this revision petition was filed. The documents are already available on the record. The complaint which set the law in motion is on the file. The Court has to give its finding after perusing all these documents. For the sake of arguments, if the said documents are not exhibited even, then the Court take judicial notice of these documents in order to reach at the just decision. Even more, mere exhibition of any document does not mean that it stand proved because the criteria for proving the document is somehow different. Hence, I hold that no illegality or irregularity was committed by the learned trial Court warranting interference through this revision petition. As such, this revision petition is dismissed. File be consigned to record room after its due completion.”

1. Learned counsel for the petitioner submits that Sajid Ali (petitioner) is facing trial as accused in case arising out of F.I.R. No. 488/18 dated: 01.09.2018, registered under Sections: 21-A, 26-A, 23-A of the Agricultural Pesticides Ordinance, 1971 at Police Station Saddar, District: Vehari and evidence of Mehfooz-ul-Haq, Agricultural Officer/Inspector Pesticides, Vehari (complainant of the case) was recorded by the learned trial Court as PW-1 on 17.02.2020 (copy of the same has been appended with the instant petition as Annexure-D); on 10.03.2020, an application was filed by the prosecution for exhibiting documents i.e. written complaint for registration of case, Form-11 and case property , which were exhibited by the learned trial Court vide order dated: 10.03.2020, said order was challenged through revision petition before learned Revisional Court by the petitioner, which revision petition was accepted and resultantly, said order was set-aside vide order dated: 21.09.2020 passed by learned Addl. Sessions Judge, Vehari. Learned counsel further submits that on 26.10.2020, prosecution filed another application for re-summoning of Mehfooz-ul-Haq (PW-1) and exhibiting the relevant documents, which application was allowed vide order dated: 26.10.2020 passed by learned SCJ (Criminal Division)/Magistrate Section 30, Vehari (copy of the same has been appended with instant petition as Annexure-F/1), petitioner again challenged said order through criminal revision petition but same was dismissed vide impugned order dated: 16.12.2020 passed by learned Addl. Sessions Judge, Vehari; also submits that impugned order is against the facts of the case and relevant law on the subject; also adds that through impugned order, “lacuna” left by the prosecution is going to be filled in and “right” accrued in favour of the petitioner is being snatched; finally prays for setting-aside both the orders mentioned above.

2. Learned Assistant Advocate General, Punjab and learned Deputy Prosecutor General have supported both the orders mentioned above.

3. Arguments heard. Available record perused.

5. It is well settled principle of law that criminal justice system is not adversarial rather inquisitorial and Court has to reach at just decision of the case; any piece of evidence which is essential for just decision of the case, has to be brought on record irrespective of the fact that either it favours one party or goes against other; any delay for filing any application for calling/recalling of witnesses or bringing any piece of evidence on record, is immaterial; similarly, filling lacuna in the case is also immaterial if said piece of evidence is otherwise necessary for securing ends of justice i.e. essential for just decision of the case. It has been noticed that evidence, which has been allowed to be brought on record of the case through orders (mentioned above), is otherwise essential for just decision of the case and accused party certainly has right to challenge the veracity of said evidence by way of cross-examination.

As far as contention of learned counsel for the petitioner that right/benefit accrued in favour of accused has been taken away through impugned orders, is concerned, same does not hold the water for the prime reason that such approach may be adopted in civil lis but not in criminal case where approach of the Court must be inquisitorial in nature; in this regard, case of “Abdul Latif Aasi versus The State” (2001 P.Cr.R 548) can be advantageously referred and its relevant Paragraph No. 7 is hereby reproduced:

“7. The main plank of the petitioner’s arguments before me has been that in our adversarial system of justice there was no scope for an inquisitorial approach adopted by learned Trial Court through the impugned order passed by it. However, the learned counsel for the petitioner have failed to point out any statutory sanction for observing that our system of justice is adversarial and not inquisitorial. If one looks at the history of our judicial system one may notice that this concept has gradually developed therein as a rule of prudence and practice mainly as regards civil litigation wherein the parties to a lis are required to lay their respective claims before the Trial Court and then substantiate, the same through evidence to be led by them. There are indications available in the Code of Civil Procedure which support the perception that civil litigation in our system is, by and large, adversarial in nature. But even there the inherent and general powers of the Court, and even some specific powers, sometimes cut across that concept. A general acceptance of that concept in the civil litigation is, even otherwise, understandable. In a civil lis, more often than not, it is the parties to the lis alone who are interested in its outcome and effect. This cannot be said to be true for a criminal case wherein an offence committed by an individual is considered to be an offence not only against his victim but also against the whole society and the State. Thus, in a criminal case an intentional or an un-intentional lapse on the part of the complainant, the Investigating Officer or the prosecuting counsel is not to be allowed to stand in the way of a Trial Court to rectify that lapse by calling in evidence on its own if such evidence can have a bearing on the determination of guilt or innocence of the accused person. Such a power has to be conceded to a Criminal Court in the larger interest of the community at large. Looked at in this context the stage of a trial appears to be irrelevant to an exercise of such a power of the Court and the only factor relevant to the exercise of such a power cannot be other than the relevance of the evidence called.”

It goes without saying that Ch.1-E of the Volume III of Lahore High Court Rules and Orders deals with recording of evidence in criminal cases and relevant portion of its Rule 2 clearly reflects as under:

“2. Duty of Court to elucidate facts.-- ...................... ............................................................................ ………………………. a Judge in a Criminal trial is not merely a disinterested auditor of the contest between the prosecution and the defence, but it is his duty to elucidate points left in obscurity by either side, intentionally or unintentionally, to come to a clear understanding of the actual events that occurred and to remove obscurities as far as possible. The wide powers given to the Court by [Article 161 of the Qanun-e-Shahadat, 1984] \[…] sh ou ld b e jud iciou sly utilized for this purpose when necessary”.

(emphasis added)

Similarly, Article 161 of the Qanun-e-Shahadat Order, 1984 is also relevant and concerned portion of the same is hereby reproduced:

“161. Judge’s power to put question or order production.--The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant, and may order the production of any document or thing and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:”

Furthermore, Section 94, Cr.P.C. is also relevant, therefore, its concerned portion is also being reproduced:

“94. Summons to produce document or other thing.--(1) Whenever any Court, or any officer in charge of a police-station considers that the production of any document or other thing is necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order:”

As far as another contention raised by learned counsel for the petitioner that impugned orders (mentioned above) filled lacuna left by the prosecution is concerned, same is also of no legal worth because when learned trial Court has clearly observed that evidence “summoned through impugned order” is necessary for just decision of the case, then objection regarding curing lapses/omissions left by any party or filling lacuna left by any party becomes irrelevant and it becomes mandatory for the Court to summon and examine such evidence; in this regard, guidance has been sought from the case of “Muhammad Azam versus Muhammad Iqbal and others” (PLD 1984 Supreme Court 95) and relevant portions from its Pages No. 118, 121 and 122 are hereby reproduced:

(Page 118) “The duty nevertheless lay squarely on the trial Court to summon the entire available evidence on this controversy and record/admit the same by virtue of power under Section 540, Cr.P.C. It reads as follows:

“540. Power to summon material witness or examine person present. Any Court may, at any stage of any inquiry, trial of other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.”

This provision is divided into two parts: one where it is only discretionary for the Court to summon a Court witness suo motu or on application, and the second part where it is mandatory for the Court to do so. The main condition to be satisfied with regard to the second part is that the evidence to be summoned under this part should appear to the Court to be essential to the just decision of the case.”

(Page 121) “It needs to be observed that for purpose of acting under Section 540, Cr.P.C. (whether the first or second part), it is permissible to look into the material not formally admitted in evidence, whether it is available in the records of the judicial file or in the police file or elsewhere. The perusal of both these records would show that if evidence, in connection with the items already noticed, would have been properly entertained the reasoning and decision of the learned two Courts might have been different.

Sometimes apprehension is expressed that any action by the trial Court under Section 540, Criminal Procedure Code would amount to filing the gaps and omissions in the version or evidence of one or the other party. It may straightaway be observed that in so far as the second part of Section 540 goes, it does not admit any such qualification. Instead, even if the action thereunder is of the type mentioned, the Court shall act in accordance with the dictates of the law. In fact the Court has no discretion in this behalf. It is obligatory on it to admit evidence thereunder if it is essential for the just decision of the case.”

(emphasis added)

(Page 122) “In yet another case Rashid Ahmad v. The State (1), this Court made it more clear that “a criminal Court is fully within its rights in receiving fresh evidence even after both the sides have closed their evidence and the case, is adjourned for judgment, for, till then the case is still pending. The only question therefore, is as to whether in the interest of fairness further opportunity should have been given to the accused”; and, it was held that “there is no bar to the taking of additional evidence in the interest of justice, at any stage of inquiry or trial as provided by the provisions of Section 540, Cr.P.C.” In these cases if the question regarding so-called filling of the gaps would have been raised more squarely, the answer in view of what has been noticed above would have been the same as already rendered; namely, that if it is essential for the just decision of the case, then the same is the command of the law under the second part of Section 540, Cr.P.C. It would not be possible to canvass that when the action under the said provision amounted to so-called filling of a gap, the Court would for this reason, avoid its duty to admit the additional evidence. Two more decisions by this Court as illustrative of the practice, may also be noted. There are: Bashir Ahmad v. The State and another (2), and Yasin alias Cheema and another vs. The State (3).”

(emphasis added)

In this regard, further guidance has been sought from the case of “The State vs. Muhammad Yaqoob and others” (2001 SCMR 308) and relevant portions from its Page No. 325 are hereby reproduced: -

“It is thus manifest that calling of additional evidence is not always conditioned on the defence or prosecution making application for this purpose but it is the duty of the Court to do complete justice between the parties and the carelessness or ignorance of one party or the other or the delay that may result in the conclusion of the case should not be a hindrance in achieving that object.”

(emphasis added)

“It is correct that every criminal case has its own facts and, therefore, no hard and fast rule or criteria for general application can be laid down in this respect but if on the facts of a particular case it appears essential to the Court that additional evidence is necessary for just decision of the case then under second part of Section 540, Cr.P.C. it is obligatory on the Court to examine such a witness ignoring technical/formal objection in this respect as to do justice and to avoid miscarriage of justice”.

(emphasis added)

1. In view of what has been discussed above, it has been found that learned trial Court while observing that “the documents are already available on the file of the case and similarly case property is also already existing”, has rightly passed the impugned order and same has been rightly upheld by the learned Addl. Sessions Judge, Vehari/ Revisional Court. Needless to observe that petitioner/accused will be afforded sufficient opportunity through cross-examination for challenging the veracity of said evidence. Therefore, impugned order dated: 16.12.2020 passed by learned Addl. Sessions Judge, Vehari and order dated: 26.10.2020 passed by learned SCJ (Criminal Division)/Magistrate Sec: 30, Vehari, are perfectly valid, well-reasoned and quite in accordance with “law, peculiar facts and circumstances” of the case; hence, need no interference. It goes without saying that august Supreme Court of Pakistan in the case of “Farooq Hussain and others versus Sheikh Aftab Ahmad and others” (PLD 2020 Supreme Court 617) has clearly observed that if the Court having examined the decision challenged before it, is satisfied with its reasoning and conclusions and is of the view that it does not call for any interference, then Court can simply endorse the impugned decision and adopt the reasoning of the Court below; relevant portion of the said order is hereby reproduced:

“It is emphasized that if this Court, having examined the judgment challenged before it, is satisfied with its reasoning and conclusions and is of the view that it does not call for any interference, this Court can simply endorse the impugned judgment and adopt the reasoning of the Court below. In such a case, re-tracing the same path travelled by the Court below appears to be an unnecessary exercise and a waste of public time-time which can be allocated to other cases where the decisions of the Courts below have been overturned or modified. Finding no reversible error in the judgment, a concise, simple order can suffice. On the other hand, if the Court is to reverse or modify the judgment of the Court below, the reasons for the reversal or modification must be set forth.

1. This approach adopted by the Court, is by no means a short-cut which is offensive to fair trial under Article 10-A of the Constitution nor does it in any manner undermine due process and fair-play. It is simply a creative way forward that spares the Court from writing opinions where a mere adoption of a well-reasoned judgement of the Court below through a short order serves the purpose adequately.”

2. For the foregoing reasons, instant petition is without merits and is hereby dismissed in limine.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 176 [Rawalpindi Bench, Rawalpindi]

Present: Abid Aziz Sheikh, J.

Sardar IMTIAZ KHAN--Petitioner

versus

COMMISSIONER RAWALPINDI DIVISION, RAWALPINDI and 5 others--Respondents

C.P. No. 1770 of 2018, decided on 15.10.2020.

Constitution of Pakistan, 1973--

----Art. 199--Acquisition of land for defence purpose--Grievance of petitioner--Filing of application before District Collector--Dismissed--Filling of objections--Announcement of accusation award--Maintainability--Main argument of petitioner’s counsel is that land of Major General (R) Muhammad Asif Khatak in Khasra No. 1676, 1677, 1678 and 1684 was excluded just to give him benefit, hence petitioner has been discriminated--Firstly, Major General (R) Muhammad Asif Khatak has not been impleaded as party in this petition to respond to these allegations and secondly respondents have explained that most of his piece of land is out of proposed dimension of Drop Zone area, hence same was not acquired--It is not cast of petitioner that his land does not fall within proposed area for Drop Zone or same is being acquired for any purpose other than defence purpose and Drop Zone and training area--No case of discrimination under Article 25 of Constitution of Islamic Republic of Pakistan, 1973, has been made out--Apprehension of petitioner that he is not expecting reasonable compensation, for his land being acquired, said ground or any other related ground can only be agitated by petitioner before appropriate forum by filing a Reference under Section 18 of Act against Award and not through this Constitutional petition--Petition was dismissed. [Pp. 178 & 179] A, B & C

Mr. Hassan Raza Pasha, Advocate for Petitioner.

Ch. Muhammad Hussain, Deputy Attorney-General for Pakistan.

Mirza Asif Abbas, Mr. Qaisar Abbas Shah, Assistant Advocate General, Punjab, on behalf of Respondents No. 1 to 3.

Barrister Umer Aslam, for Respondent No. 4.

Date for Haring: 15.10.2020.

Order

This constitutional petition has been filed with the following prayer:

“It is, therefore very respectfully prayed that instant writ petition may kindly be accepted, the Notification under Section 4 of the Land Acquisition Act dated 20.07.2016 passed by respondent No. 2 and Notification under Section 5 No. 5 dated 3514/LAC/ATK dated 17.07.2017 and order dated 06.06.2018 passed by Respondent No. 1 and the other order dated 24.06.2017 passed by Respondent No. 2 may also be set aside to the extent of petitioner’s land and respondents may kindly be directed to exclude the land of petitioner as mentioned in Para 1 of the writ petition, along with Khasra No. 300 (غیر ممکن راستہ) adjacent to Khasra Nos. 214, 215 as shown on the Aks Shajra as the land of Major General (R) Asif has been excludedto eliminate, the discrimination and to save the precious and fundamental rights of the petitioner because the said land is only source of livelihood of the petitioner and his family. Any other relief which is just and proper may kindly be granted in the interest of justice.”

1. Relevant facts are that land measuring 7191-Kanal 13-Maria, situated in village Surag Salar, Chhoi Garyala, Dhair, Barotha, Tehsil and District Attock was being acquired for defence purpose i.e. Drop Zone and training area for Headquarter 11-Special Service Brigade Brotha Garrison. The grievance of the petitioner is that aforesaid land also include the land of the petitioner in revenue estate Surag Salar, Tehsil Attock. The petitioner requested Respondent No. 2 to exclude his land from proposed acquired land in same manner as land of one Major General (R) Muhammad Asif Khatak, was excluded, however, the petitioner’s land was not excluded. The petitioner being aggrieved filed W.P. No. 1493/2017 before this Court, which was disposed of with direction to District Collector to decide petitioner’s application, however, said application was dismissed on 24.06.2017. The petitioner again filed W.P. No. 2210/2017 which was disposed of on 27.02.2018 being not pressed and awaiting decision of petitioner’s objections before the Collector under Section 5-A of the Land Acquisition Act, 1894 (Act), but the said objections were also dismissed on 06.06.2018, hence this constitutional petition.

2. The learned counsel for the petitioner submits that the petitioner has been discriminated as respondents have excluded land in Khasra Nos. l676, 1677, 1678 and 1684 owned by Major General (R) Muhammad Asif Khatak just to give him benefit, however, the land of the petitioner has been included for acquisition. He further submits that petitioner has a valuable land which is his only source of livelihood and he has apprehension that only a meagre amount shall be offered to the petitioner. He further submits that there is no public purpose involved in the acquisition of land as training area is already available for the last 40 years.

3. The learned counsel for the respondents on the other hand submits that Acquisition Award dated 05.10.2020 has already been announced, therefore, the petitioner, if aggrieved, should file a Reference under Section 18 of the Act and this writ petition is not maintainable. He further submits that most of the land of Major General (R) Muhammad Asif Khatak is out of proposed dimension and Drop Zone, hence same was not acquired, however, 80-Kanal of land of Major General (R) Muhammad Asif Khatak has been acquired for Drop Zone. To support their contention, the respondent has placed on record sketch/Google image of the Drop Zone area. He further submits that hectic training schedule and security aspect do not permit that ownership of proposed land to be allowed to remain with the land owners, hence the land was acquired for public purpose.

5. Arguments heard. The main argument of the petitioner’s learned counsel is that the land of Major General (R) Muhammad Asif Khatak in Khasra No. 1676, 1677, 1678 and 1684 was excluded just to give him benefit, hence the petitioner has been discriminated. Firstly, Major General (R) Muhammad Asif Khatak has not been impleaded as party in this petition to respond to these allegations and secondly the respondents have explained that most of his piece of land is out of the proposed dimension of the Drop Zone area, hence same was not acquired. It is also stated that some of his land which comes within the Drop Zone area was acquired through the Award dated 05.10.2020. It is not the case of the petitioner that his land does not fall within the proposed area for Drop Zone or the same is being acquired for any purpose other than defence purpose and Drop Zone and training area. In the circumstances, no case of discrimination under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, has been made out.

1. Even otherwise, the question whether piece of land of Major General (R) Muhammad Asif Khatak which was not acquired falls within the dimension of Drop Zone or not beside being a matter to be decided by experts, is a disputed question of fact and cannot be agitated and decided in summary proceedings of this constitutional petition.

7. So far as the apprehension of the petitioner that he is not expecting reasonable compensation, for his land being acquired, the said ground or any other related ground can only be agitated by the petitioner before the appropriate forum by filing a Reference under Section 18 of the Act against the Award dated 05.10.2020 and not through this Constitutional petition.

1. In view of above discussion, this petition being meritless is dismissed.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 179

Present: Ch. Muhammad Masood Jahangir, J.

GHULAM HUSSAIN, etc.--Petitioners

versus

MUHAMMAD HUSSAIN, etc.--Respondents.

W.P. No. 38630 of 2015, heard on 28.10.2020.

Constitution of Pakistan, 1973--

----Art. 199--Specific Relief Act, 1877, S. 54--Suit for permanent injunction--Ex-parte decreed--Appeal--Slight modification--Application for contempt proceeding for recovery of possession--Dismissed which further congealed by ADJ--Concurrent findings--Question of--Whether after pronouncement of decree, decree holder was dispossessed from that khasra or not--Determination--Joint owners--No trust worthy evidence--Validity--Respondents produced on record copy of Register Haqdaran Zameen for year 1982-83 (Exh. R.5), which found mention that in particular khasra, Muhammad Hussain, judgment-debtor being sharer was in its exclusive possession, so it stood established without any doubt that even prior to decree, judgment-debtor was ploughing disputed area--Moreover, document brought on file by both parties further confirmed that they were joint owners--Onus probandi was on petitioners’ shoulder to prove same without any shadow of doubt, but Ghulam Hussain (PW1) in his statement-in-chief could only deposed that in March, 2002, he was evicted from land--As per contents of contempt application, occurrence was witnessed by Hayat and Muhammad Akram, but out of them, only latter (PW2) appeared, who also failed to give specific time, date, month or year of incident alleged to have been happened within his view, whereas second one was withheld--Moreover, no trustworthy evidence brought on suit file to shatter veracity of copies of Jamabandies tendered on behalf of respondents--As such, Courts below were quite justified to refuse claim of petitioner--Next drastic angle of case was that judgment debtor/Respondent No. 1 till this time has passed away, as such to his extent, contempt application has become infructuous, whereas rest of respondents were not party to original suit/decree, hence no punitive action against them is warranted--Although Mr. Allah Bakhsh Gondal, Advocate for petitioners took maximum time, but could not persuade that either evidence available on this file was misinterpreted in its true perspective or impugned orders were result of some jurisdictional defect, coram non judice or ultra vires to call for interference by this Court, hence are approved and instant Constitutional Petition being bereft of any merit is dismissed.

[Pp. 181 & 182] A, B, C & D

1999 MLD 2297 & PLD 2009 SC 380 ref.

Mr. Allah Bakhsh Gondal, Advocate for Petitioners.

Mr. Zia Ullah Khan Niazi, Advocate for Respondent No. 1.

Mr. Ihsan Ahmad Bhindar, Advocate for Respondents 4 and 5.

Date of hearing: 28.10.2020.

Judgment

Indeed, Muhammad Fareed, the ascendant of the petitioners, long ago instituted suit for permanent injunction only against Muhammad Hussain, Respondent No. 1 (now deceased). Muhammad Fareed through his suit claimed his exclusive ownership qua different khasras including area falling in Square No. 325, Killa No. 24 praying for decree to restrain Muhammad Hussain from his illegal eviction. The sole defendant did not appear on the scene, consequently Muhammad Fareed was finally equipped with ex parte decreed on 11.02.1998, however there was some omission in referring Khasras number, who for its insertion himself appealed and another decree dated 11.09.2001 was awarded to him by the learned Appellate Court with slight modification, which stood final having not been agitated further by anyone. Thereafter, on 24.04.2002 Muhammad Fareed, decree holder filed application for initiation of contempt proceedings against the judgment-debtor as well as Respondents No. 2 to 5 while asserting that standing crops as well as about forty trees over area falling in square number 325 Killa No. 24 were put to fire and its possession was taken over unauthorizedly. The ultimate prayer of the petitioner was for recovery of possession of the said property along with some damages, which resisted mainly on the score that no order of the Court was ever violated. The learned Civil Court settled issues, invited the parties to lead their respective evidence and while evaluating the same finally dismissed the application on 26.10.2007, which was further congealed by learned Addl. District Judge on 29.01.2008, hence this constitutional petition to assail the said concurrent findings.

1. Arguments heard and record scanned.

3. The sole question to be resolved is whether after the pronouncement of decree dated 11.02.1998 or 21.09.2001, the decree holder was dispossessed from the aforenoted khasra or not. The respondents produced on record copy of Register Haqdaran Zameen for the year 1982-83 (Exh. R.5), which found mention that in particular khasra, Muhammad Hussain, the judgment-debtor being sharer was in its exclusive possession, so it stood established without any doubt that even prior to decree, the judgment-debtor was ploughing the disputed area. Moreover, the document brought on file by both the parties further confirmed that they were joint owners.

4. The next drawback of the case was that petitioner while approaching the learned Civil Court through contempt application did not demonstrate specific time and date of the alleged occurrence for their illegal eviction by the rivalry from the property under their alleged plough. The onus probandi was on petitioners’ shoulder to prove the same without any shadow of doubt, but Ghulam Hussain (PW1) in his statement-in-chief could only deposed that in March, 2002, he was evicted from the land. As per contents of contempt application, the occurrence was witnessed by Hayat and Muhammad Akram, but out of them, only the latter (PW2) appeared, who also failed to give specific time, date, month or year of the incident alleged to have been happened within his view, whereas the second one was withheld. Moreover, no trustworthy evidence brought on suit file to shatter the veracity of copies of Jamabandies tendered on behalf of the respondents. As such, the Courts below were quite justified to refuse claim of the petitioner.

5. The next drastic angle of the case was that the judgment debtor/Respondent No. 1 till this time has passed away, as such to his extent, the contempt application has become infructuous, whereas rest of the respondents were not party to the original suit/decree, hence no punitive action against them is warranted. See Mubarak Ali vs. Feroze Din and 2 others (1999 MLD 2297) and Syed Naghman Haider Zaidi and another vs. Zahid Mehmood and others (FLD 2009 SC 380).

6. Although Mr. Allah Bakhsh Gondal, Advocate for the petitioners took maximum time, but could not persuade that either the evidence available on this file was misinterpreted in its true perspective or the impugned orders were result of some jurisdictional

defect, coram non judice or ultra vires to call for interference by this Court, hence are approved and instant Constitutional Petition being bereft of any merit is dismissed.

(M.M.R.) Petition dismissed

PLJ 2021 Lahore 182

Present: Ch. Muhammad Iqbal, J.

AMINA KHATOON (Widow)--Petitioner

versus

MEMBER (JUDICIAL-III), BOARD OF REVENUE, PUNJAB and 7 others--Respondents

W.P. No. 37642 of 2019, decided on 9.11.2020.

Constitution of Pakistan, 1973--

----Arts. 2, 199 & 227--Incorporation of inheritance mutation in revenue record in favour of legal heirs of petitioner’s husband--Excluding of name of petitioner--Deceased husband of petitioner was belongs to Fiq Jafria--Appeal before Assistant Commissioner--Dismissed--Appeal before Addl., Commissioner--Dismissed--Revision petition--Dismissed--Supreme Law--Deprivation from inheritance--Violation of injunctions of Holy Qur’an and Law--Question of--Whether widow of an issue loss deceased Shia Muslim belonging to fiqah jafria is entitled to inherit legacy of her late husband--Challenge to--According to Article 2 of Constitution of Islamic Republic of Pakistan, 1973, Islam is State Religion under Article 227 of Constitution, principles of Quran and Sunnah are declared as supreme law of this country and all provisions, rules and regulations are to be legislated/framed within precincts of Islamic principles--It can conveniently be held that revenue authorities have passed impugned orders, depriving petitioner from inheritance of her deceased husband, in violation of clear ordain/injunctions of Holy Quran as well as law laid down in this regard, as such, same not sustainable--Petition was allowed.

[Pp. 183, 184 & 191] A & B

PLD 2016 Lahore 865, PLD 1972 SC 346, 2010 SCMR 1915, PLD 2016 Lah 865 ref.

Messrs Haroon Yazdani, Dildar Hussain and Yousaf Naseem Chandio, Advocates for Petitioner.

Mr. Asif Mehmood Cheema, Additional Advocate General alongwith Muhammad Amir Raza, ADLR and Mazhar Abbas, Tehsildar for Respondents.

Mian Shahid Iqbal, Advocate for Respondents.

Date of hearing: 9.11.2020.

Judgment

Through this writ petition, the petitioner has challenged the legality of order dated 07.02.2019, whereby the appeal of the petitioner was dismissed by the Assistant Commissioner/Collector, Jalalpur Pirwala, District Multan on the ground that she is widow of deceased Syed Ali Raza who has died issueless and as the deceased belonged to Shia sect, the petitioner (widow) is not entitled for inheritance of Syed Ali Raza, and also challenged the order dated 09.03.2019, passed by the Additional Commissioner (Consolidation), Multan Division, Multan and the order dated 09.04.2019, passed by the Member, Board of Revenue who dismissed the revision petition of the petitioner.

1. Brief facts of the case are that Syed Ali Raza, husband of the petitioner, died issueless on 18.01.2016 leaving behind the petitioner (widow) and Respondents No. 5 to 8 (brothers & sisters) as his legal heirs. Syed Ali Raza was owner of land measuring 324 Kanal 06 Maria 30 Sq. Ft. situated in Khata No. 369, 370, 371, 372, 375, 380, 386, 478 Moza Kotli Aaday, Jalalpur Pirwala District Multan and after his death, inheritance Mutation No. 8124 dated 26.05.2017 was incorporated in the revenue record in favour of the legal heirs of Syed Ali Raza excluding the name of the petitioner on the ground that the deceased Syed Ali Raza belonged to Fiqa Jafria, as such, his widow is not entitled for the inheritance of deceased. The petitioner filed appeal before the Assistant Commissioner, Jalalpur Pirwala, which was dismissed on 07.02.2019. The petitioner filed appeal before the Additional Commissioner (Revenue), Multan Division which was dismissed on 09.03.2019. Against the aforesaid orders, the petitioner filed revision petition before the Board of Revenue, which was also dismissed vide order dated 09.04.2019. Hence, this writ petition.

2. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

4. According to the Article 2 of the Constitution of the Islamic Republic of Pakistan, 1973, Islam is the State Religion under Article 227 of the Constitution, the principles of Quran and Sunnah are declared as supreme law of this country and all provisions, rules and regulations are to be legislated/framed within the precincts of Islamic principles. For reference Article 227 of the Constitution of Islamic Republic of Pakistan is reproduced as under:

227. Provisions relating to the Holy Quran and Sunnah.--(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions.

1[Explanation.--In the application of this clause to the personal law of any Muslim sect, the expression “Quran and Sunnah” shall mean the Quran and Sunnah as interpreted by that sect.]

(2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part.

(3) Nothing in this Part shall affect the personal laws of non-Muslim citizens or their status as citizens.

1. In this case, only question involved is that whether the widow of an issueless deceased Shia Muslim belonging to Fiqah Jafria is entitled to inherit the legacy of her late husband? In this regard, manifest guidance is contained in Holy Quran in Ayat No. 12 of Surah An-Nisa, which is as under:

ترجمہ: اور تمہارے لیے نصف ہے جو چھوڑ جائیں تمھاری بیویاں بشرطیکہ نہ ہو ان کی اولاد اور اگر ہو ان کی اولاد تو تمھارے لیے چوتھائی ہے اس سے جو وہ چھوڑ جائیں (یہ تقسیم) اس وصیت کے پورا کرنے کے بعد ہے جو وہ کر جائیں اور قرض ادا کرنے کے بعد اور تمھاری بیویوں کا چوتھا حصہ ہے اس سے جو تم چھوڑو بشرطیکہ نہ ہو تمھاری اولاد اور اگر ہو تمھاری اولاد تو ان کا آٹھوان حصہ ہے اس سے جو تم پیچھے چھوڑ جائو (یہ تقسیم) اس وصیت کو پورا کرنے کے بعد ہے جو تم نے کی ہو اور (تمھارا) قرض ادا کرنے کے بعد۔ اور اگر ہو وہ شخص جس کی میراث تقسیم کی جانے والی ہے کلالہ وہ مرد ہو یا عورت اور اسکا بھائی یا بہن ہو تو ہر ایک کے لیے ان میں سے چھٹا حصہ ہے اور اگر وہ بہن بھائی ایک سے زیادہ ہوں تو سب شریک ہیں تہائی میں (یہ تقسیم) وصیت پوری کرنے کے بعد ہے جو کی گئی ہے اور قرض ادا کرنے کے بعد بشرطیکہ اس سے نقصان نہ پہنچایا گیا ہو۔ (یہ نظام وراثت) حکم ہے اللہ کی طرف سے اور اللہ تعالیٰ سب کچھ جاننے والا بڑا بردبار ہے۔ (ضیاء القران: پیر محمد کرم شاہ)

And unto you belongeth a half of that which your wives leave, if they have no child; but if they have a child then unto you the fourth of that which they leave, after any legacy they may have bequeathed, or debt (they may have contracted, hath been paid). And unto them belongeth the fourth of that which ye leave if ye have no child, but if ye have a child then the eighth of that which ye leave, after any legacy ye may have bequeathed, or debt (ye may have contracted, hath been paid). And if a man or a woman have a distant heir (having left neither parent nor child), and he (or she) have a brother or a sister (only on the mother’s side) then to each of them twain (the brother and the sister) the sixth, and if they be more than two, then they shall be sharers in the third, after any legacy that may have been bequeathed or debt (contracted) not injuring (the heirs by willing away more than a third of the heritage) hath been paid. A commandment from Allah. Allah is Knower, Indulgent, (translation by Muhammad Pickthall)

Almighty Allah, in the afore-referred Ayat, has settled this issue that if an issueless male Muslim dies, his widow would be entitled to 1/4th share from his legacy. This Court has already resolved this controversy in a landmark judgment cited as Khalida Shamim Akhtar (PLD 2016 Lahore 865) wherein the judgment cited as Syed Muhammad Munir (representation by 10 heirs) and another vs. Abu Nasar, Member (Judicial) Board of Revenue, Punjab, Lahore and 7 others (PLD 1972 SC 346) and Muhammad Bashir and others vs. Mst. Latifa Bibi through LRs. (2010 SCMR 1915) were discussed in detail and it was settled that the widow of an issueless male Muslim deceased is entitled to inherit 1/4th share from the leftover estate of her husband. Relevant portion of the judgment (PLD 2016 Lahore 865) is reproduced as under:

1. Keeping in view the importance of the question, emerged in this petition and the fact that, a particular class is being deprived from a right of inheritance, and the fact that the Legislature, despite the fact that, it was expected from it even in 1972 to take such legislative measures in order to settle the issue, has not taken any such steps, a public notice was ordered to be issued on 05.05.2016, inviting any segment of life to render assistance to the Court in this regard, particularly, Shia Ulema.

In response, Allama Syed Iftikhar Hussain Naqvi Najafi, a sitting Member of Council of Islamic Ideology, Government of Pakistan, appeared and rendered assistance. He has also referred his own collection on this point titled “Kitah-e-Meeras”; Volume-3, Chapter-9 whereof deals with the matter of inheritance of husband or wife.

1. During arguments, from both the sides, case-laws titled Syed Muhammad Munir (represented by 10 heirs) and another vs. Abu Nasar, Member (Judicial) Board of Revenue, Punjab, Lahore and 7 others (PLD 1972 Supreme Court 346) and also Muhammad Bashir and others vs. Mst. Latifa Bibi through LRs (2010 SCMR 1915) have been referred and relied upon in order to reach to a just conclusion; therefore, I am going to summarize the above noted case-laws.

In Syed Muhammad Munir’s case (supra), some collection of different Authors, including Syed Ameer Ali, Tyabji, K.P. Saxena, Shama Churun Sircar and Allama Mufti Syed Tyeb Agha Musavi Jazairi, the Hon’ble Supreme Court of Pakistan reached to the conclusion that, the rule, which was being acted in Shia Sect for inheritance purpose to the effect that, a “childless widow” would not inherit her husband in immovable property, has been taken as the force behind as of “Ijma “ and it was left to be taken-up by the Legislature, after consulting Shia community, if a change is desired to be made in such rule. In the same judgment, it has been noted that, such question was raised some times back in the West Pakistan Legislative Assembly, but no amendment was made in relevant law as it was opposed by Shia community and in such connection, Allama Mufti Syed Tyeb Agha Musavi Jazairi seriously controverted the argument that Shia rule was against the text of Holy Qur’an by maintaining in a pamphlet entitled “Beevi Ki Meeras”.

Ayat No. 12 of Sura Al-Nisa can be quoted in this respect, which has been translated in English by S.V. Mir Ahmed Ali:-

“And for them shall be a fourth of what ye leave if ye have no issue, and if ye have an issue then for them (shall be) the eighth of what ye leave after paying the bequest ye had bequeathed and the debt”.

In Muhammad Bashir’s case (supra), although the Hon’ble Supreme Court of Pakistan has commented upon the history and background of division of Muslims in different sects by maintaining that, it is not necessary that a “Mussalman” must either be a Sunni or a Shia and it may well be that he is free from all sectarian feelings, sentiments and faith. It was also maintained that, it cannot be overlooked that, in the first 150 years of the history of Islam, sects were unknown. In fact, the four Schools of Law viz. Hanafi, Maliki, Shafi and Hanbali, were founded in the second century Hijra. The position, therefore, is crystallized that the formation or division of the Muslim population in the world among several sects took place long after the revelation and death of the Prophet (Peace Be Upon Him). After digging out such history, the Hon’ble Supreme Court, thus, found itself unable to hold that, every “Mussalman” must either be a Shia or a Sunni.

However, such question of competence of a “childless widow” to inherit her Shia husband, has not been answered even in Muhammad Bashir’s case.

1. The Quranic Command, as reflected herein-above, in Verse No. 12 of Surah Nisa has completely been ignored in the case, in hand, rather a totally contrary view is being preferred.

The main sources of Shariat are; Holy Qur’an, Sunnah, Ijma and Qias and the Hon’ble Federal Shariat Court in case titled “Muhammad Nasrullah Khan vs. The Federation of Pakistan and another” (Shariat Petition No. 06/1 of 2013) has held that, if something in any Book is proved to be different from Quran and Sunnah, that would be invalid.

Muhammadan Law by D.F.Mullah, not only in the present case, but other cases also is oftenly quoted for a reference. The Hon’ble Federal Shariat Court, in the referred judgment, has held that, said law is in fact only a reference book and not a statutory law applicable in Pakistan, in the sense that the legislature has not enacted the same. It is just an option of the Court to consult the same on the basis of equity and refer to the principles mentioned in paragraphs of the said book, at times, and that too casually in some matters only. Moreover, the rules quoted in Muhammadan Law are not at all applicable, if in the opinion of the Court, they are found opposed to justice, equity and good conscience. These rules are not even referred to in situations directly covered by the Holy Quran or Surmah or by binding Ijma and Qias.

1. According to Para-113 of Muhammadan Law by D.F. Mulla, a childless widow takes no share in her husband’s lands, but she is entitled to her one-fourth share in the value of trees and buildings standing thereon, as well as in his movable property including debts due to him though they may be secured by a usufructuary mortgage or otherwise.

This Para is in complete negation of Ayat No. 12 of Sura Al-Nisa, whereby a childless widow is entitled to 1/4th share from the leftover estate of her husband. The legislation has not declared Muhammadan Law as codified one.

1. In “Kitab-e-Meeras” Volum-3, Chapter-9 by Allama Syed Iftikhar Hussain Naqvi Najafi, even a childless widow of Fiqa-e-Jafariya, is held entitled to inherit 1/4th share from the leftover estate of her deceased husband and while appearing before this Court, he has reiterated his such version as taken in the referred book ad submitted that, Ahl-e-Tashih or Fiqa-e-Jafariya are first Muslims and cannot think of a different thinking, as have been settled by Holy Qur’an. Ayat No. 12 of Sura Al-Nisa, has been referred by Allama Syed Iftikhar Hussain Naqvi Najafi, in support of his such version. He has referred the under-mentioned collections from Fiqa-e-Jafariya on this point:

1۔ منہاج الصالحین، بحث میرات زواج و زوجہ، تالیف آیت اللہ

علی سیستانی، نجف اشرف، عراق

2۔ منہاج الصالین آیت اللہ وحید خراسانی، قم المقدسہ، ایران

3۔ توضیح المسائل آیت اللہ حافظ بشیر حسین نجفی، بحث میراث زوج و زوجہ

4۔ استفتات از حضرت آیت اللہ السید علی خامنہ ای، ایران

5۔ تحریر الوسیلہ تالیف حضرت امام خمینی بحث میراث زوج و زوجہ

6۔ منہاج الصالحین، بحث میراث الزوج و الزوجہ، آیت اللہ

السید ابو القاسم الخوائی، نجف اشرف عراق

9. The question of competence of a childless widow from Fiqa-e-Jafariya has not yet been adjudicated upon by the Judiciary and unless the Legislature, by performing its duty, legislate any codified law in this respect, it is declared that even a childless widow from Fiqa-e-Jafariya would be entitled to claim 1/4th share from the leftover estate of her husband.

1. After holding this, the judgment and decree arrived at by the learned Additional District Judge, Chakwal, on 08.06.2010 has no place to be retained as a valid judgment; therefore, same is set-aside, whereas, judgment and decree, passed by the learned trial Court on 16.12.2008 is restored and resultantly, suit of present petitioner is decreed.

2. Before parting with this judgment, this Court extends profound gratitude to Allama Syed Iftikhar Hussain Naqvi Najafi, who rendered his valuable assistance to the Court in reaching a just decision on such intricate question, which remained unanswered since decades.

3. It is expected that, the Government of Pakistan in Ministry of Law, would take legislative measures to promulgate a codified law in this regard in order to protect the rights of childless widows from Ahl-e-Tashih, in getting their due shares from the inheritance of their deceased husbands.

4. Office is directed to send a copy of this judgment to the Secretary Law, Government of Pakistan.

With these observations, this civil revision petition stands allowed.

1. The practice to deprive the females from their right of inheritance secured and guaranteed by Allah Almighty has already been deprecated by the Hon’ble Supreme Court of Pakistan in a landmark judgment, cited as Ghulam Ali and 2 others vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Relevant part of the judgment (supra) is reproduced as under:

“…….. As is discussed in the case of Haji Nizam (approved in Mohammad Bashir ‘s case) which was also a case of clash of Islamic principles against those of other systems-a widowed daughter-in-law, seeking maintenance for her minor child against the grandfather, it is the duty of the Courts within the permissible fields, as specified therein, to enforce Islamic law and principles. This case also required similar, if not better, treatment. The scope of rights of inheritance of females (daughter in this case) is so wide and their thrust so strong that it is the duty of the Courts to protect and enforce them, even if the legislative action for this purpose of protection in accordance with Islamic Jurisprudence, is yet to take its own time.

In the rural areas where 80% of the female population resides, the inheritance rights of the females are not as protected and enforced, as Islam requires. Cases similar to this do come up even to Supreme Court. In a very large majority of them the Courts act rightly and follow the correct rules. But it is a wide guess as to how many females take the courage of initiation or continuing the legal battle with their close one in matters of inheritance, when they are being deprived. The percentage is very low indeed. Neither the Courts nor the law as at present it stands interpreted, are to be blamed. The social organizations including those in the legal field are yet to show up in the rural area. They are mostly managed by Urban volunteers. When will they be able to move out of mostly managed by Urban volunteers. When will they be able to move out of sophisticated methods of American speech/seminar system and all that goes with it, in the enlightened urban society? It is a pity that while an ubranised brother, who is labourer in a neighbouring Mill, has the protection of such mass of Labour Laws; which sometimes even Courts find it difficult properly to count-right from the definition of ‘rights’, up to the enforcement’ even in homes, through ‘Social Security’ Laws, with web of network of ‘Inspectorates’ etc. who are supposed to be helping him at every step, his unfortunate sister, who is deprived of her most valuable rights of inheritance even today by her own kith and kin—sometimes by the urbanized brother himself, is not even cognizant of all this. She is not being educated enough about her rights. Nearly four decades have passed. A new set up is needed in this behalf. Social Organizations run by women have not succeeded in rural field. They may continue for the urban areas where their utility might also be improved and upgraded. At the same time they need to be equipped with more vigorous training in the field of Islamic

learning and teachings. They should provide the bulk of research in Islamic Law and principles dealing with women. It is not the reinterpretation alone which is the need of the day hut a genuine effort by them for the reconstruction of the Islamic concepts in this field. It cannot be achieved by the use of alien manner or method alone.”

In view of the above, it can conveniently be held that the revenue authorities have passed the impugned orders, depriving the petitioner from the inheritance of her deceased husband, in violation of the clear ordain/injunctions of Holy Quran as well as the law laid down in this regard, as such, the same not sustainable.

1. Resultantly, this writ petition is allowed, the impugned orders dated 07.02.2019, 09.03.2019 and 09.04.2019 passed by the revenue hierarchy are set aside, the application of the petitioner for insertion of her name in the inheritance mutation is accepted and the revenue authorities are directed to do the needful in view the observations made above.

(Y.A.) Petition allowed

PLJ 2021 Lahore 191

Present:Jawad Hassan, J.

MUHAMMAD RASHEED, etc.--Petitioners

versus

GOVERNMENT OF THE PUNJAB through Secretary Health Lahore and 4 others--Respondents

W.P. No. 68928 of 2017, decided on 24.11.2020.

Constitution of Pakistan, 1973--

----Art. 199--Appointment as ward boys ward servants on daily wages--Termination from service--Redressal of grievance--Direction to--Counsel for Petitioners states that Petitioners will be satisfied and will not press this Petition if direction be issued to Respondent No. 4/Medical Superintendent, DHQ, Sheikhupura to redress their grievance expeditiously in accordance with law--Law Officer has no objection to same--A certified copy of this Petition along with all annexures be transmitted to Respondent No. 2, who shall, ‘ decide same strictly in accordance with law and judgments mentioned above, rules, regulations and policies applicable thereto, after providing proper hearing to all concerned including Petitioners, expeditiously within a period of one (01) month from receipt of certified copy of this order--Petition was disposed of.

[Pp. 192 & 193] A & B

2019 SCMR 233 ref.

M/s. Ghazanfar Ali Bhatti and Ghulam Abbas Khan Balouch, Advocates for Petitioners.

Barrister Hassan Khalid Ranjha, Assistant Advocate-General with Safdar Abdul Qayyum, Law Officer of Respondents No. 3 and 4.

Date of hearing: 24.11.2020.

Judgment

Through this writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”) the Petitioners have sought directions to the Respondent-Department to reinstate them into service with all back benefits and also to regularize them in accordance with law.

1. Learned counsel for the Petitioners submits, that the Petitioners were appointed as Ward Boy(s)/Ward Servants since 2013 on daily wages by the Respondent No. 2 and subsequently terminated from service on 06.06.2017 without giving any notice and proper hearing. Learned counsel relies upon the judgments cited as “Board of Intermediate and Secondary Education, D.G. Khan and another v. Muhammad Altaf and others” (2018 SCMR 325), ‘‘Board of Intermediate and Secondary Education, Faisalabad through Chairman and, others v. TANVEER SAJID and others” (2018 SCMR 1405) and “Board of Intermediate and Secondary Education, Multan through Chairman and another v. Muhammad Sajid and others” (2019 SCMR 233).

2. Learned Law Officer at the outset objected qua maintainability of this Petition being premature.

4. In response thereof, learned counsel for the Petitioners states that the Petitioners will be satisfied and will not press this Petition if direction be issued to the Respondent No. 4/Medical Superintendent, DHQ, Sheikhupura to redress their grievance expeditiously in accordance with law. Learned Law Officer has no objection to the same.

5. Let a certified copy of this Petition along with all the annexures be transmitted to the Respondent No. 2, who shall, decide the same strictly in accordance with law and the judgments mentioned above, rules, regulations and policies applicable thereto, after

providing proper hearing to all the concerned including the Petitioners, expeditiously within a period of one (01) month from the receipt of certified copy of this order. The Petitioners along with certified copy of this order shall approach the Respondent No. 4 on 01.12.2020 at 11:00 a.m.

1. Disposed of accordingly.

(Y.A.) Petition disposed of

PLJ 2021 Lahore 193

Present: Muhammad Ameer Bhatti, J.

SUI NORTHERN GAS PIPELINES LTD.--Appellant

versus

MUHAMMAD RAMZAN--Respondent

R.F.A. No. 52584 of 2019, heard on 19.11.2019.

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

----S. 96, O.XVII, R. 3--Suit for recovery--Closing of right for evidence--Suit was dismissed--Challenge to--Counsel for appellant has failed to satisfy this Court with regard to any illegality or irregularity--Committed by trial Court while passing impugned judgment and decree--I do not find any reason to interfere in judgment & decree passed by trial Court while dismissing appellant’s suit--Appeal was dismissed. [P. 194] A & B

2015 SCMR 1401 ref.

Mr. Khalil-ur-Rehman, Advocate for Appellant.

Mr. Nisar Akbar Bhatti, Advocate for Respondent.

Date of hearing: 19.11.2019.

Judgment

In a suit for recovery of Rs. 4,45,260/-, instituted by the appellant in the Court constituted under The Gas (Theft, Control and Recovery) Act, 2016, leave to appear and contest the suit was granted by the learned trial Court on 06.03.2018 and on filing written statement the issues were condensed on 09.04.2018, where-after the appellant was directed to produce the evidence. The record reveals that till 19.06.2019, i.e. the date of final adjudication, when the appellant’s closed under Order XVII Rule 3, C.P.C. and suit was dismissed for want of evidence after granting numerous opportunities including the absolute last and final opportunities with fine of Rs. 1,000/-. Despite all these efforts made by the learned trial Court the appellant did not

produce the evidence leaving no option with the Court but to close its right to lead and in consequence whereof the suit was dismissed.

The learned counsel for the appellant has failed to satisfy this Court with regard to any illegality or irregularity committed by the learned trial Court while passing the impugned judgment and decree dated 19.06.2019.

1. The Hon’ble Supreme Court in a case reported as Rana Tanveer Khan v. Naseer-ud-Din and others (2015 SCMR 1401) has already refused to grant any further opportunity to negligent and careless party to get favour for obtaining another opportunity to lead evidence, relevant portion whereof is reproduced hereunder for ready reference:

“In the present case, as mentioned above, it is clear from the record that the appellant had availed four opportunities to produce his evidence and in two of such orders (the last in the chain) he was cautioned that such opportunity granted to him at his request shall be the last one, but still on the day when his evidence was closed in terms of Order XVII, Rule 3, C.P.C. no reasonable ground was propounded for the purposes of failure to adduce the evidence and justification for further opportunity, therefore, notwithstanding that these opportunities granted to the appellant were only in a span of about 1 month and 26 days, yet his case squarely fell within the mischief of the provisions ibid and his evidence was rightly closed by the trial Court”

3. In view of the above, I do not find any reason to interfere in the judgment and decree passed by the learned trial Court while dismissing appellant’s suit, therefore, this appeal having no merit stands dismissed. No order as to costs.

(Y.A.) Appeal dismissed

PLJ 2021 Lahore 194

Present: Mrs. Ayesha A. Malik, J.

GHULAM HUSSAIN etc.--Petitioners

versus

IQBAL HUSSAIN through his legal heirs etc.--Respondents

C.R. No. 2244 of 2014, heard on 10.6.2020.

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

----S. 9--Civil Procedure Code, (V of 1908), S. 115--Suit for possession--Decreed--Appeal--Allowed--Case was remanded--Suit was again decreed in post-remand proceeding--Civil appeal--Accepted--Establishment of title--Non-tendring of any title document by respondent--Report of revenue authorities--Non-justification of claim by respondent--Record shows that Petitioners exhibited rapat roznamcha waqiati Ex.P1 in which revenue officer made a clear finding that Defendants No. 1 and 2 were in illegal possession of Property--Order of appellate Court did not take into consideration rapat roznamcha waqiati Ex.P1--Stated defendant relied upon decree sheet in Civil Suit which does not establish that he is owner of Property or that he has a share in aforementioned Khasra or Khata nor was judgment attached with said decree sheet nor any details were provided--Appellate Court failed to consider this aspect of matter and concluded in favour of Respondent No. 3 on basis of possession of Respondents No. 1 and 2--Hence there was no justification for Court to conclude that defendants were co-sharers in Khasra No. 2425, Khata No. 156 as Respondent No. 3 already had possession of land he was in ownership of--Petitioners have a registered sale deed in their favour which was never disputed--Admittedly they were in possession of 16 Marlas of land on basis of sale deed and description of land given therein--Appellate Court had no document before it on basis of which joint ownership in Khasra No. 2425 and Khata No. 156 was established with respect to Property--Mere possession, without any title in support thereof does not give Respondent No. 3 title nor justifies Respondents No. 7 and 8’s possession which was reported as illegal by revenue authority--Furthermore Ex.Pl provides that parties settled their dispute with respect to possession in Khasra No. 2425, Khata No. 156, consequently Respondent No. 3 is unable to justify his claim over 3 Marlas of land in said Khasra, especially since Respondent No. 4 admits that Ameer Muhammad’s possession over 5 Kanals of land is not in issue--Revision petition was accepted.

[Pp. 198 & 199] A, B, C & D

Mr. Muhammad Aslam Chaudhary, Advocate for Petitioners.

Mr. Fayyaz Kalim, Advocate on behalf of counsel for Respondent No. 4.

Date of hearing: 10.6.2020.

Judgment

This Civil Revision impugns judgment dated 5.6.2010 passed by the Additional District Judge, Bhakkar in Civil Appeal No. 76/2009.

1. The basic facts are that the Petitioners filed a suit for possession (Civil Suit No. 276/1997) on 23.10.1997 before the Civil Judge 1st Class, Mankera against the Respondents with respect to property measuring 3 Marlas within the vicinity of Ward No. 2, Town Committee, Mankera (“the Property”). The Suit was contested by Defendants No. 1, 2 and 3 being Respondents No. 7, 8 and 3 before this Court and decreed in favour of the Petitioners vide judgment and decree dated 20.6.2005 wherein Respondents No. 7 and 8 were declared to be illegal occupants of the Property and the Petitioners were declared owners of the Property, thereby rejecting Respondent No. 3’s claim of title. Consequently Respondents No. 7 and 8 were directed to hand over possession of the Property to the Petitioners. Aggrieved by this judgment and decree, the Respondents filed an appeal before the Additional District Judge, Bhakkar who remanded the case with the direction that the case be decided afresh after framing an additional issue regarding limitation being Issue No. 1 A. The learned trial Court again decreed the suit in favour of the Petitioners vide judgment and decree dated 16.4.2008. Against this judgment and decree dated 16.4.2008, the Respondents filed Civil Appeal No. 76/2009 which was accepted and the impugned judgment and decree was set aside vide judgment dated 5.6.2010 passed by the appellate Court. The Petitioners filed the instant Civil Revision against the judgment of the appellate Court dated 5.6.2010 on the ground that the Respondents were neither owners nor in possession of the Property; that the rapat roznamcha waqiati Ex.P1 clearly stated that Respondents No. 7 and 8 were in illegal possession of the Property; that the Petitioners had a registered sale deed dated 26.2.1991, Ex.P3 which was not disputed by the Respondents. Hence there was no basis to give possession of the land to the Respondents.

2. Learned counsel for the Petitioners argued that the case of the Respondents before the trial Court and the appellate Court was essentially that they are joint owners in Khasra No. 2425, Khata No. 156 which comprises of 42 Kanals 2 Marlas of land; that they purchased and in the said Khasra and since the properties have not been partitioned, the Petitioners cannot lay claim to any specific piece of land within the joint Khata as all co-sharers have rights in the said Khata. Learned counsel argued that there was nothing on the record to establish the title of Defendant No. 3 who is Respondent No. 3 before this Court; that Respondent No. 3 claimed that he was owner in possession of 5 Kanals of land out of which 3 Marlas is disputed. However Respondent No. 3 did not tender any title documents before the trial Court. This fact has been totally ignored in the order of the appellate Court which accepted the contentions of the Respondents that they were co-owners in Khasra No. 2425 and Khata No. 156 without actually considering the issue of their title.

3. On behalf of Respondent No. 4, it is argued that the said Respondent is the legal heir of Ameer Muhammad along with Respondents No. 2 and 3; that Ameer Muhammad is the owner of the Property which the Petitioners claim that they are in ownership of, however since the issue is of joint ownership in the same Khasra and Khata, the suit for possession is not maintainable without partition of the Property and without impleading all co-sharers. In this case, he argued that the Petitioners did not implead all the co-sharers and as such there was no report available on the file to support the Petitioners’ contention that the Property they claim ownership of was the specific land which they are entitled to.

4. This is an old case pending since the year 2017. As per the order sheet, Respondent No. 4 has been contesting this case whereas the other Respondents despite service have never tendered appearance before the Court. On 18.9.2019 notice ‘pervi’ was issued to the Respondents except Respondents No. 2 to 4 yet despite the same no one has tendered appearance. On 1.6.2020 final opportunity was given and again no one appeared on behalf of Respondents No. 1, 2, 3, 5, 6, 7 and 8, hence they are proceeded against ex-parte. Respondent No. 4 is present before this Court.

5. In this regard, it is noted that as per the Amended Memo. of Parties filed on 8.2.2018 Respondents No. 2, 3 and 4 are the legal heirs of Ameer Muhammad who was Defendant No. 3 in the suit filed by the 3 Petitioners and Respondents No. 7 and 8 are the legal heirs of Defendants No. 1 and 2 in the said suit.

6. As per the record, the Petitioners filed a suit for possession against the Respondents on 23.10.1997. They claimed that they purchased 19 Marlas of land in Khasra No. 2425, Khata No. 126/156, of which they have obtained possession of 16 Marlas of land and that 3 Marlas of land was wrongfully in the possession of Ghulam Qadir and Mazhar being Defendants No. 1 and 2 in the said suit. Defendants No. 1 and 2 filed written statements as did Defendant No. 3 being Respondent No. 3 in the instant Civil Revision in which it was claimed that Defendant No. 3, Ameer Muhammad was owner of 5 Kanals of land of which he had handed over possession of some land to Defendants No. 1 and 2. Hence the Petitioners’ claim that they are owners of the Property was contested. Eight Issues were framed in the suit and the suit was decided in favour of the Petitioners on 20.6.2005. As per the judgment dated 20.6.2005 passed by the Civil Judge 1st Class, Mankera, the Petitioners produced four witnesses and placed reliance on rapat roznamcha waqiati Ex.P1, map of the disputed plot Ex.P2 and registered sale deed as Ex.P.3. Whereas Defendants No. 1 and 2 produced two witnesses along with two affidavits Ex.D1 and Ex.D2, Defendant No. 3 relied upon the statement of the Clerk of TC, Mankera as DW1 and he himself appeared as a witness as DW2. He also relied upon a decree dated 13.12.1995 as Mark-A. On the basis of the evidence the Court held that the Petitioners have a registered sale deed in their favour and that the rapat roznamcha waqiati clearly provides that Defendants No. 1 and 2 are in illegal occupation of some land. The Court also concluded that there was no document on the basis of which Defendant No. 3 could claim ownership of 5 Kanals of land as nothing was produced in Court. Consequently they failed to make out their case of ownership and possession.

7. The appellate Court vide judgment dated 5.6.2010 while setting aside the judgment and decree dated 16.4.2008 disagreed with the opinion of the trial Court on the ground that the Respondents were the owners of land in Khasra No. 2425, Khata No. 156 and that as per the sale deed the defendants were in possession of two rooms on the Property which originally the vendor Sharif-ud-Din had requested the defendants to vacate. Hence the appellate Court concluded that the Petitioners never got possession of 3 Marlas of land out of the 19 Kanals of land and that the Respondents were the owners of 11 Marlas of land in Khasra No. 2425, Khata No. 156 being co-sharers in the said Khata. Consequently judgment and decree dated 16.4.2008 passed by Civil Judge 1st Class, Mankera was set aside on the ground that co-sharers cannot lay claim to specific land in a joint Khata and that the Petitioners cannot claim the specific property as being their property as there has been no demarcation or partition.

9. The record shows that the Petitioners exhibited rapat roznamcha waqiati Ex.P1 in which the revenue officer made a clear finding that Defendants No. 1 and 2 were in illegal possession of the Property. The order of the appellate Court did not take into consideration the rapat roznamcha waqiati Ex.P1. In fact the appellate Court has incorrectly held in its order that the Petitioners have not obtained any report of any revenue authority to establish that the Property is part and parcel of the 19 Marlas of land they had purchased. The rapat roznamcha waqiati Ex.P1 is available on the file, in terms of which the revenue officer not only stated that Defendant No. 3 was in possession of his 5 Kanals of land but was prepared in his presence, he can hardly justify claiming ownership or possession over the Petitioners’ land under the garb of joint ownership. Hence this finding of the appellate Court is contrary to the record. Furthermore the Respondents No. 7, 8 and Respondent No. 3, Ameer Muhammad relied upon Mark-A to establish title in Khasra No. 2425, Khata No. 156. In the first instance it is noted that as per the record and on the basis of the arguments made before this Court, no title document, in

favour of Defendant No. 3, was ever produced in the Court. The stated defendant relied upon the decree sheet in Civil Suit No. 222/1992 dated 13.12.1995 which does not establish that he is the owner of the Property or that he has a share in the aforementioned Khasra or Khata nor was the judgment attached with the said decree sheet nor any details were provided. The appellate Court failed to consider this aspect of the matter and concluded in favour of Respondent No. 3 on the basis of the possession of Respondents No. 1 and 2. Hence there was no justification for the Court to conclude that the defendants were co-sharers in Khasra No. 2425, Khata No. 156 as Respondent No. 3 already had possession of the land he was in ownership of. Finally the Petitioners have a registered sale deed in their favour which was never disputed. Admittedly they were in possession of 16 Marlas of land on the basis of the sale deed and the description of the land given therein. The appellate Court had no document before it on the basis of which joint ownership in Khasra No. 2425 and Khata No. 156 was established with respect to the Property. Mere possession, without any title in support thereof does not give Respondent No. 3 title nor justifies Respondents No. 7 and 8’s possession which was reported as illegal by the revenue authority. Furthermore Ex.P1 provides that the parties settled their dispute with respect to possession in Khasra No. 2425, Khata No. 156, consequently Respondent No. 3 is unable to justify his claim over 3 Marlas of land in the said Khasra, especially since Respondent No. 4 admits that Ameer Muhammad’s possession over 5 Kanals of land is not in issue.

1. In view of the aforesaid, the instant Civil Revision is accepted and the impugned judgment dated 5.6.2010 passed by the Additional District Judge, Bhakkar in Civil Appeal No. 76/2009 is set aside.

(Y.A.) Revision petition accepted

PLJ 2021 Lahore 199 [Multan Bench Multan]

Present: Sardar Muhammad Sarfraz Dogar, J.

SAJID IRTIZA--Petitioner

versus

JUSTICE OF PEACE, LODHRAN and 2 others--Respondents.

W.P. No. 11402 of 2018, heard on 1.12.2020.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 489-F--Criminal Procedure Code, (V of 1898), S. 22-A(6)(iii) & 22-B--Cheque was dishonoured--Application for registration of case--Accepted--Challenge to--Out dated cheque--Validity--It evinces that a cheque or a negotiable instrument, presented after six months of its due date is generally termed as stale cheque and as per banking practice, bank is not obliged to honour it unless instructed by account holder--It is observed that Cheque in question is Respondent No. 3 presented it to concerned bank on 29.3.2018, i.e. after one year, five months and 28 days--It was thus patently out of--Respondent No. 3 knew fully well that it would not be encased yet he presented it merely to bring case against Petitioner under Section 489-F PPC--In Shafqat Hussain Hashmi’s case, a, Court held this contrivance malicious--Insertion of Section 22-A(iii) was no meant to necessary allow every such application else fature would not have used word ‘may’ in subsection (6) when (word may) always speaks of’discretion1 by application of mine.

[Pp. 203 & 206] C, E & F

Negotiable Instruments Act, 1881--

----S. 84(1)(2)--Dishonoured of cheque--Time for encashment of cheque--Foundational elements to constitute offence under this 489-F are as under:

(i) the cheque was duly issued, (ii) it was issued with dishonest intent, (iii) it was issued towards repayment of a loan or fulfillment of an obligation, and

(iv) it was dishonoured on presentation.

Absence of even one of these elements would take case out of ambit of Section 489-F PPC--A cheque presented for encashment before a bank, beyond period of six months of its due date is generally regarded as stale cheque--While looking for “usage of trade and of bankers”. [Pp. 202] A & B

1994 MLD 271, 2012, MLD 1551 and 2005 CLC 797.

Negotiable Instruments Act, 1881--

----S. 137--Pakistan Penal Code, (XLV of 1860), S. 489-F--Dishonor of cheque--Validity--No doubt Section 138 of Indian Negotiable Instruments Act, 1881, is distinguishable from Section 489-F PPC in many ways but it has two important aspects: first, it gives statutory recognition to concept of stale cheque and, secondly, it emphasizes that cheque must be valid at time of presentation.

[P. 205] D

2000 Cri.LJ 1152, 2000(4) ICC 228.

Mr. Muhammad Shareef Karkhi Khera, Advocate for Petitioner.

Mr. Tariq Nadeem, AAG for the State.

Respondent in person.

Date of hearing: 1.12.2020.

Judgment

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the following prayer has been made:

“It is therefore, most respectfully prayed that the impugned order dated 06.8.2018 passed by the learned Justice of Peace may very kindly be declared illegal, the same be set aside and inconsequence of the same, the petition for registration of the case filed by Respondent No. 3 may very kindly be dismissed, to meet with the ends of justice.”

1. Learned counsel for the petitioner, inter-alia contends that the order passed by learned Ex-officio Justice of Peace, dated 06.8.2018 is based on wrong premises of law and facts; that the perusal of the application filed by the Respondent No. 3 does not reveal commission of any cognizable offence under Section 489-F, PPC; that the cheque in question was of dated 1.10.2016 and as per prevalent practice of the banks Respondent No. 3 could present it for encashment only within six months from the date of its issuance but the same was presented in the bank on 29.3.2018, as such, no criminal case could be registered against the petitioner on the basis of said cheque. Learned counsel lastly prayed that the impugned order is liable to be set aside.

2. Conversely, the Respondent No. 3 opposed the contentions of learned counsel for the petitioner. The learned Law Officer has submitted a report on behalf of the Respondent No. 2/Station House Officer Police Station City Lodhran.

3. Heard. Record perused.

4. The record evinces that Respondent No. 3 lodged an application under Sections 22-A and 22-B, Cr.P.C. before the learned Ex-Officio Justice of the Peace alleging therein that the petitioner borrowed an amount of Rs. 2,70,000/- from him and for repayment of said loan he issued cheque in question in his favour, which was bounced when presented in the bank for encashment. The report and parawise comments requisitioned by the learned Ex-Officio Justice of the Peace, Lodhran, are available on the file, wherein, the SHO concerned has reported that Respondent No. 3 has not joined the proceedings before him, however, the petitioner appeared and got his statement recorded that he has not issued any cheque in favour of Respondent No. 3.

5. Section 489-F, PPC criminalizes dishonest issuance of cheque. It reads as under:

489-F. Dishonestly issuing a cheque.--Whoever dishonestly issues a cheque towards repayment of a loan or fulfillment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both, unless he can establish for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque.”

Bare reading of above quoted section makes it crystal clear that it does not attract in every case where a cheque is dishonoured.

The foundational elements to constitute the offence under this 489-F are as under:

(i) the cheque was duly issued, (ii) it was issued with dishonest intent, (iii) it was issued towards repayment of a loan or fulfillment of an obligation, and

(iv) it was dishonoured on presentation.

Absence of even one of these elements would take the case out of the ambit of Section 489-F, PPC. Section 489-F, PPC docs not stipulate any period within which the holder must present the cheque to the bank for encashment. However, Section 84(1) of the Negotiable Instruments Act, 1881 (the “Act”), contemplates that the cheque is to be produced for encashment within a reasonable time. Likewise, it is mentioned 84(2) of the same Act that in determining what is a reasonable time, regard shall be had to the nature of the instrument, the usage of trade and of bankers and the facts of the particular case. A cheque presented for encashment before a bank, beyond period of six months of its due date is generally regarded as a stale cheque. While looking for the “usage of trade and of bankers”, within the meaning of Section 84(2) of Negotiable f Instruments Act, 1881, I have come across following material:

(i) In Sheldon’s Practice and Law of Banking (10th Edition) it is mentioned that it is necessary to distinguish between cheques termed ‘out of date’ in Law for purposes of negotiation and those termed ‘out of date’ by banker’s custom. As regards the Latter, most bankers return cheques presented six or more months after date marked “out of date”, and require the drawer’s confirmation before payment”.

(ii) In Banking Laws and practice in India by M.L. Tannan (Fourteen Edition), it is mentioned that “unless a cheque is presented within reasonable time after the ostensible date of its issue, it should not be honoured.

7. From above, it evinces that a cheque or a negotiable instrument, presented after six months of its due date is generally termed as stale and as per banking practice, the bank is not obliged to honour it unless instructed by the account holder. Reference may be usefully made to the Banking Glossary issued by the State Bank of Pakistan, which can be reckoned as an authentic reflection of the “usage of trade and of bankers” contemplated in Section 84(2) of the Act. It reads:

“State Cheque” A stale cheque is a cheque that has been outstanding for an unreasonable time. A cheque may be outstanding for more than six months and a bank may under its discretion refuse to honour such a cheque. A bank is under no obligation to a customer to pay a cheque, other than a certified cheque, after more than six months of its date, but it can charge its customer’s account for a payment made thereafter in good faith.”

While dilating upon the issue of stale of cheque, the learned Single Bench of Sindh High Court in the case of Habib Bank Limited v. Jamilur Rehman (1994 MLD 271) after impounding upon the subject in detail observed that after the lapse of period of six months, the cheque becomes out of date or stale. Similarly, in the case of Shafqat Hussain Hashmi v. The State (2012 MLD 1551), wherein learned Judge of Sindh High Court was pleased to quash the proceedings arising out of a case registered under Section 489-F, PPC, on the basis of a stale cheque. As a necessary consequences of above discussion, it has become clear that on the basis of stale cheque no criminal proceedings can be initiated.

1. In passing, it may be pointed out that even on the civil side in certain circumstances Courts have refused to entertain claims based on stale cheques. In Kamran Akhter v. Jawed Ahmed Khan (2005 CLC 797), the respondent filed a suit under Order XXXVII, CPC for recovery of money against cheque dated 7.12.2000 which was presented to the bank on 24.7.2001. The District Judge decreed the suit but the High Court set aside the judgment and decree in appeal and remanded the matter with a direction to treat it as an ordinary suit and decide the same according to the regular procedure prescribed by law (instead of a summary procedure under Order XXXVII, CPC).

2. Dishonour of cheque is culpable in India under Section 138 of the (Indian) negotiable Instruments Act, 1881. The said section, however, lays down certain conditions for the constitution of offence. It reads:

3. Dishonour of cheques for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheques or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless--

a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation.--For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.

10. No doubt Section 138 of the Indian Negotiable Instruments Act, 1881, is distinguishable from Section 489-F, PPC in many ways but it has two important aspects: first, it gives statutory recognition to the concept of stale cheque and, secondly, it emphasizes that the cheque must be valid at the time of presentation. In Rekha Rani Pyne v. Sambhunath Halder [2000 (4) ICC 228], the Calcutta High Court quashed legal proceedings initiated on an out of date cheque. The Court ruled in the fallowing manner:

“... The validity period of the cheque has expired in the meantime. In that circumstances, the proceeding is bad in law as at the material point of time there was no existence of valid cheque. The existence of valid cheque is condition precedent under Section 138 of the Negotiable Instruments Act. That is absent in this case. That apart, I have already found that even if there was an order of granting liberty, it cannot override the specific provision of Negotiable Instruments Act. Taking all these facts into consideration I find that the proceeding was bad in law and cognizance was also not taken legally. Therefore, the entire proceeding is liable to be quashed.”

1. Similarly, in Stanley Barros Pereira vs. Julieta Cota e Clemente and another [2006 (2) GOA L.R 287] the Bombay High Court ruled as under:

“As stated by Shri Hadiga/PW-2 the subject cheque had become stale after the complainant was informed for the first time that the account was closed and therefore it could not have been promoted again. The second presentation of the cheque by the complainant was not within the validity period of the said cheque as per banking practice though otherwise it was within a period of six months as contemplated by clause (a) to the proviso below Section 138.... In this view of the matter, no fault could be found with the acquittal of the accused.”

1. In Arunbhai Nilkanthrai Nanavati v. Jayaben Prahlad Bhai (2000 CriLJ 1152), Gujrat High Court held:

“For the aforesaid reasons, the cheque is required to be presented at the paying Bank i.e., drawee within the period of 6 months or the period of validity whichever is earlier for valid initiation of the criminal action i.e., lodging of the complaint against the drawer. When this is the only possible interpretation, it cannot be said that the faith of those dealing with others through Bank will be frustrated. It is also not open to contend that the payee will be helpless. When in this case, the cheque is not presented at the paying Bank within six

months, the application is required to be allowed, and the complaint, being not tenable for want of non-subsistence of cause of action, is not only required to be quailed, but the petitioner also deserves a discharge, allowing the applications Exhs. No. 8 & 10.”

13. Reverting to the instant case, it is observed that Cheque in question is dated 01.10.2016. Respondent No. 3 presented it to the concerned bank on 29.3.2018, i.e. after one year, five months and 28 days. It was thus patently out of date. Respondent No. 3 knew fully well that it would not be encashed yet he presented it merely to bring the case against the Petitioner under Section 489-F, PPC. In Shafqat Hussain Hashmi’s case, supra the Court held this contrivance malicious.

14. In view of above, Respondent No. 3 did not approach the Court with clean hands and apparently had (sic) and concealed the material facts. Exposing a person to investigative process and face rigors of criminal prosecution is a no small measure; there must exist reasonable and tangible, material with evidential basis to set the law into motion so as to bring about an indictment. The insertion of Section 22-A(b)(iii) was (sic) to necessary allow every such application else the (sic) would not have used word ‘may’ in subsection (6) (sic) (word may) always speaks of ‘discretion’ by application of (sic).

1. For the above identified reasons, it is a fit case for interference and invalidation of the impugned order. Therefore, by allowing this petition, impugned order dated 06.8.2018 passed by the learned Ex-Officio Justice of Peace, Lodhran is set-aside.

(M.M.R.) Petition allowed

PLJ 2021 Lahore 206

Present: Ch.Muhammad Iqbal, J.

NAZAR MUHAMMAD--Petitioner

versus

MEMBER (JUDICIAL-VII), BOR, PUNJAB, LAHORE etc.--Respondents.

W.P. No. 31310 of 2013, decided on 9.11.2020.

Constitution of Pakistan, 1973--

----Art. 199--Application for correction of Khasra Girdawri--Dismissed--Appeal--Filing of ROR--Purchase of land--Determination of issue of correction of khasra--Cultivating possession--Challenge to--Respondents purchased land measuring 02-Kanals 07-Marlas in joint Khata and became co-sharer whereas petitioner has remedy to file suit for partition of agricultural land before Tehsildar in this regard--Furthermore, to determine actual cultivating possession of property is factual in nature which could only be settled after recording of evidence which exercise ordinarily cannot be undertaken in constitutional Jurisdiction of this Court--Counsel for petitioner has not been able to point out any illegality or material irregularity in impugned orders and has also not identified any jurisdictional defect calling for interference by this Court--Petition was dismissed. [Pp. 208] A & B

1993 SCMR 618 and 2011 SCMR 279 ref.

Mr. Javed Iqbal Malik, Advocate for Petitioner.

Mr. Asif Mahmood Cheema, Addl. Advocate General.

Mr. Khurram Shahzad Dhudhal, Advocate for Respondent No. 4-F.

Date of hearing: 9.11.2020.

Order

Through this writ petition, the petitioner has challenged the legality of order dated 12.03.2008 passed by the District Officer (Revenue), Gujranwala whereby application for correction of Khasra Girdawari filed by the petitioner was dismissed; order dated 26.01.2010 passed by the Executive District Officer (Revenue), Gujranwala who dismissed the appeal of the petitioner and order dated 04.09.2013 passed by the Member (Judicial-VII), Board of Revenue, Punjab who dismissed ROR No. 874 of 2010 of the petitioner.

1. Brief facts of the case as contended by the learned counsel for the petitioner are that the petitioners filed an application for the correction of Khasra Girdawari to the District Officer (Revenue) Gujranwala on 01,06.2006 which was dismissed vide order dated 12.03.2008. The petitioner filed an appeal which was also dismissed by the Executive District Officer (Revenue), Gujranwalavide order dated .26.01.2010. ROR No. 874 of 2010 of the petitioner was also dismissed by the Member (Judicial-VII), Board of Revenue, Punjab vide order dated 04.09.2013. Hence, this writ petition.

2. I have heard the arguments of the learned counsel for the petitioner and gone through the record with his able assistance.

4. Admittedly, the respondents purchased land measuring 02-Kanals 07-Marlas in joint Khata and became co-sharer whereas the petitioner has remedy to file suit for partition of agricultural land before the Tehsildar in this regard. Furthermore, to determine the issue of correction of Khasra Girdawari as well as the actual cultivating possession of the property is factual in nature which could only be settled after recording of evidence which exercise ordinarily cannot be undertaken in constitutional Jurisdiction of this Court. Reliance is placed on the cases titled as Muhammad Younus Khan and 12 others vs. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618) and Anjuman Fruit-Arhtian and others vs. Deputy Commissioner, Faisalabad and others (2011 SCMR 279).

5. Learned Counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned orders and has also not identified any jurisdictional defect calling for interference by this Court.

1. In view of above, this writ petition is dismissed being devoid of any merits.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 208

Present:Muhammad Ameer Bhatti, J.

SUI NORTHERN GAS PIPELINES LTD. through General Manager (Distribution) Faisalabad--Appellant

versus

MUHAMMAD NAWAZ--Respondent

R.F.A. No. 52656 of 2019, heard on 19.11.2019.

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

----S. 96--Specific Relief Act, (I of 1877), Ss. 42 & 55--Suit for declaration and mandatory injunction--Partially decreed--Issuance of accumulative bill--Total consumption of default period--Increasing of slab rate--Challenge to--Claim of respondent to issue/charge him with consumption month-wise bill has force because otherwise on account of charging him accumulative total consumption of default period slab rate will causing him a huge loss--Trial Court rightly accepted prayer of plaintiff/respondent considering it reasonable/plausible, hence, not committed any illegality warranting interference, therefore, I do not find any reason to interfere in conclusion drawn by trial Court as same is in consonance with law and facts of case warranting no interference by this Court--Appeal was dismissed. [Pp. 209 & 210] A & B

Mr. Khalil-ur-Rehman, Advocate for Appellant.

Mr. Muhammad Shafique Malik, Advocate for Respondent.

Date of hearing: 19.11.2019.

Judgment

The accumulative bill issued by the appellant for the period of December, 2009 to May 2011 was challenged by the respondent through a suit for declaration alongwith mandatory injunction before the Judge Gas Utility Court, Faisalabad, under the provisions of The Gas (Theft, Control and Recovery) Act, 2016, which was partly decreed by the learned trial Court in the following terms:

“Nut shell of above discussion is that, suit filed by plaintiff is partially decreed in way that defendant gas company is not entitled to recover price of gas of 238 HM3 for impugned meter as per Exh.P2 at a cumulative slab rate for whole consumed gas rather defendant gas company is entitled to recover price of gas consumed by plaintiff from December, 2009 to 30.03.2011, while dividing whole gas quantity consumed for that period on monthly basis and then as per slab rate for the gas consumed in each month separately. The defendant gas company is also liable to recover the price of gas consumed by plaintiff from 30.03.2011 to 27.07.2014 as reflected in Exh.C5 and that was calculated to be gas consumed as 48.25HM3. The defendant gas company may recover the bill amount as per consumption after the month of July, 2014. The defendant gas company is further directed to adjust paid amount of Rs. 100,000/-by plaintiff as per Court orders, while calculating the gas price for ‘“periods mentioned above. No order as to costs. Decree sheet be prepared accordingly. Ahlmad of this Court, is directed to consign the file to record room after its due completion and compilation.”

2. I have heard the learned counsel for the parties and gone through record of the case. The claim of the respondent to issue/charge him with consumption month-wise bill has force because otherwise on account of charging him accumulative total consumption of the default period the slab rate will increase causing him a huge loss. The learned trial Court rightly increase the prayer of the plaintiff/respondent considering it reasonable/plausible, hence, not committed any illegality

warranting interference, therefore, I do not find any reason to interfere in the conclusion drawn by the learned trial Court as the same is in consonance with law and facts of the case warranting no interference by this Court; hence, this appeal having no merit stands dismissed. No order as to costs.

(Y.A.) Appeal dismissed

PLJ 2021 Lahore 210

Present: Ch. Muhammad Iqbal, J.

HIDAYAT ULLAH (deceased) through his Legal Heirs--Petitioners

versus

Haji GHULAM HASSAN KHAN (deceased) through his Legal Heirs etc.--Respondents.

C.R. No. 2203 of 2015, decided on 30.9.2020.

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

----S. 54--Civil Procedure Code, (V of 1908), S. 115--Suit for permanent injunction--Dismissed--Appeal dismissed--Concurrent findings--Unregistered sale-deed--Non-producing of solid evidence or witness by plaintiffs--Challenge to--Respondent/defendant produced Mutation in favour of Ghulam Rasool sanctioned on basis of a judgment & decree in respect of suit land, which means that respondents/defendants are owners in possession of land measuring 06 Kanal 03 Marla--Petitioners/plaintiffs neither produced any witness in support of their claim nor brought on record any solid evidence to show that respondents/defendants are illegally interfering into possession of petitioners/plaintiffs--On other hand, respondents/defendants through oral as well as documentary evidence proved that they are owners in possession of land--Counsel for petitioners has not been able to point out any illegality or material irregularity, mis-reading and non-reading of evidence in impugned judgments & decrees passed by Courts below and has also not identified any jurisdictional defect--concurrent findings of fact are against petitioners which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction--Revision petition was dismissed. [Pp. 211 & 212] A, B & C

2014 SCMR 1469 ref.

Messrs Najam Iqbal Balal and Zafar Abbas Khan, Advocates for Petitioner.

Mr. Muhammad Mumtaz Afridi, Advocate for Respondents.

Date of hearing: 30.9.2020.

Judgment

Through this single judgment, I intend to decide the titled Civil Revision No. 2203/2015 as well as Writ Petition No. 232671/2019, as common questions of law and facts are involved in these cases.

1. Through this civil revision, the petitioner has challenged the judgment & decree dated 24.10.2012, passed by the learned Senior Civil Judge, Bhakkar whereby the suit for permanent injunction filed by the petitioners/plaintiffs was dismissed and the judgment & decree dated 27.06.2015, passed by the learned Additional District Judge, Bhakkar dismissing the appeal of the petitioner.

2. Brief facts of the case are that the petitioners/plaintiffs filed a suit for permanent injunction against the respondents/ defendants contending therein that they are owner in possession of Khata No. 180/171 Khatooni No. 345 Khasra No. 2117/494 measuring 02 Kanal 06 Marla, fully described in the headnote of the plaint. The petitioners/plaintiffs claim that they purchased the suit land against consideration from Dost Muhammad Khan through sale deed dated 31.03.1972 and the respondents/defendants have no concern with the suit land. The respondents/defendants are illegally and unlawfully interfering into the peaceful possession of the petitioners/ plaintiffs. The respondent/defendant filed contesting written statement contending therein that he purchased 1/5th share of land measuring 06 Kanal 03 Marla in Khata No. 180/345 from Sher Bahadur Khan and in this regard a judgment & decree dated 03.07.1972 was passed in his favour on the basis of which, Mutation No. 1514 dated 28.07.1976 was incorporated in the revenue record. The learned trial Court framed issues, recorded evidence of the parties and finally dismissed the suit vide judgment & decree dated 24.10.2012. The petitioner filed an appeal which was also dismissed by the learned appellate Court vide judgment & decree dated 27.06.2015. Hence, this civil revision.

3. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

5. The petitioners/plaintiffs filed suit for permanent injunction on the basis of an unregistered alleged sale deed dated 21.03.1972 but ordinarily unregistered documents are devoid of conferring any title on its holder unless he is proved to be an owner of said property through independent believable evidence. The respondent/defendant produced Mutation No. 1514 dated 28.07.1976 in favour of Ghulam Rasool sanctioned on the basis of a judgment & decree dated 03.07.1972 in respect of suit land, which means that the respondents/defendants are the owners in possession of the land measuring 06 Kanal 03 Marla.

6. The petitioner/plaintiff produced Nasrullah Khan, Patwari (P.W.I) who admitted it correct that Khasra No. 2117/494 is owned by the defendant and the plaintiffs are not mentioned as owners in Khasra No. 2117/494. Mohsinullah, one of the petitioners/plaintiffs, (P.W.3) stated that his father and his uncle purchased suit land measuring 02 Kanal 06 Marla from Dost Muhammad Khan and in this regard a stamp paper (Exh.P.3) consisted of 20 pages were prepared and they got possession of the same. In cross-examination, he admitted that stamp paper (Exh.P.3) was not written before him; that he did not know the scribe of stamp paper (Exh.P.3); that he also did not know which khasra number is written in the plaint.

7. The petitioners/plaintiffs neither produced any witness in support of their claim nor brought on record any solid evidence to show that the respondents/defendants are illegally interfering into the possession of the petitioners/plaintiffs. On the other hand, the respondents/defendants through oral as well as documentary evidence proved that they are the owners in possession of the land. Furthermore, the respondents/defendants categorically stated in their written statement that they are in possession of the land owned by them and are not intended to get possession of the land in possession of the petitioners/plaintiffs by any means. This assertion of the respondents/defendants is sufficient for the dismissal of the suit of the petitioners/plaintiffs.

8. Learned counsel for the petitioners has not been able to point out any illegality or material irregularity, mis-reading and non-reading of evidence in the impugned judgments & decrees passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of fact are against the petitioners which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case titled as Mst. Zaitoon Begum v, Nazar Hussain and another (2014 SCMR1469).

1. In view of above, this civil revision being devoid of any merit is dismissed. No order as to costs.

2. As regard the connected case i.e. Writ Petition No. 23267/2019 is concerned, the said petition has been filed by the petitioners/plaintiffs (Mohsin Ullah Khan) against the order dated 20.04.2018, passed by the learned Civil Court in a suit filed, by respondents/defendants against the present petitioners whereby the proceedings of the said suit were adjourned sine-die due to pendency of

instant civil revision. As the instant civil revision has been decided today, therefore, Writ Petition No. 23267/2019 is hereby disposed of being infructuous.

(Y.A.) Revision petition dismissed

PLJ 2021 Lahore 213

Present:Ch. Muhammad Iqbal, J.

AZIZ-UR-REHMAN--Petitioner

versus

MEMBER (J.V), BOARD OF REVENUE, PUNJAB, LAHORE etc.--Respondents

W.P. No. 15472 of 2013, heard on 4.11.2020.

Constitution of Pakistan, 1973--

----Art. 199--Confirmation of consolidation scheme--Appeal--Partly accepted--Filing of ROR--Dismissed--Review petition dismissed--Principle of laches--Concurrent decisions--Matter in issue pertains to consolidation proceedings which contains factual controversy and same cannot be resolved in constitutional jurisdiction and this Court ordinarily avoids to re-appraise such factual controversy in its writ jurisdiction as it cannot sit as an appellate Court against concurrent decisions of Consolidation Revenue Authorities--Counsel for petitioner has not been able to point out any illegality or material irregularity in impugned orders and has also not identified any jurisdictional defect calling for interference by this Court--Petitions was dismissed. [Pp. 220 & 221] B & C

1970 SCMR 292, PLD 1974 SC 139, 1989 SCMR 1817, 2006 SCMR 951 and 2013 SCMR 906 ref.

Vigilantibus Non Dormierttibus Jura. Subveniunt--

----Vigilance about rights--Law will assist only those who are vigilant about their rights and not those who sleep over them.

[Pp. 214 & 215] A

Rai Muhammad Panah Bhatti, Advocate for Petitioner.

Mr. Asif Mehmood Cheema, Additional Advocate General.

Messrs Mushtaq Ahmad Dhoon and Naila Mushtaq Dhoon, Advocates for Respondents (in W.P. No. 15472/2013).

Mr. Aqib Javed, Advocate for Respondents (in W.P. No. 15473/2013).

Date of hearing: 4.11.2020.

Judgment

Through this single order, I intend to decide the titled writ petition as well as connected Writ Petition No. 15473/2013, as common questions of law and facts are involved in both these cases.

1. Through these writ petitions the petitioner has challenged the order dated 07.05.2010, passed by the Executive District Officer (Revenue), Mianwali who accepted the appeal of the Respondent No. 3, modified the wandajat made in consolidation proceedings; and the order dated 21.11.2011, passed by the Member (Judicial-V), Board of Revenue, Punjab who dismissed the revision petition filed by the petitioner.

2. Brief facts of the case are that consolidation scheme of Mauza Bhamb Tehsil Piplaii District Mianwali was confirmed on 29.09.2001. The petitioner and others filed appeal before the Consolidation Officer which was partly accepted vide order dated 24.03.2005 and some amendments were made in wandajats. The petitioner and others filed two separate appeals before the Executive District Officer (Revenue), Mianwali who dismissed the appeal of the petitioner and partly accepted the appeal filed by Abdul Rehman etc.vide two separate orders dated 07.05.2010. Against the said order, the petitioner filed two revisions i.e. ROR No. 1605 & 1606 of 2010 which were dismissed by the Member (Judicial-V), Board of Revenue, Punjabvide single order dated 21.11.2011. The petitioner filed two review petition No. 101 & 102 of 2012 which were also dismissed by the Member, Board of Revenue vide order dated 30.04.2012. Hence, this writ petition.

3. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

4. The petitioner challenged the order dated 21.11.2011 passed by the Member, Board of Revenue, whereas instant writ petition was filed by the petitioner on 05.06.2013 i.e. after lapse of about 01 year & 06 months, as such, this petition is duly hit by the principle of laches.

6. The doctrine of laches is based on the maxim “Vigilantibus Non Dormierttibus Jura. Subveniunt” which means that the law will assist only those who are vigilant about their rights and not those who sleep over them. The definition of legal term “laches” in Black’s Law Dictionary is as under:

“It is a French term which has been derived from {Law French, “remisshess, slackness”}

Unreasonable delay in pursuing a right or claim---almost always an equitable one--in a way that prejudices the party against whom relief is sought.

It is better to have a glimpse over the Ancient Law in order to know the right connation of the term “Laches.”

Early in its history, Chancery developed the doctrine that where the plaintiff in equity delayed beyond, line period of the statute applicable at law, relief would be refused on the ground of laches even through no specific prejudice to the defendant was shown. Today, in most slates there are statutes of limitation applying to suits in equity. Despite these, however, the doctrine still holds that even if the delay is for a shorter period, of time than that of the statute, it may still bar equitable relief if it is unreasonable and prejudicial to the defendant.

The definition of word/term “laches” as per Law Lexicon is as under:

“Laches : Laches or lachesis an old French word for slackness or negligence, or not doing”.

Laches in law: Laches in law is neglect to do something which by law a man is obliged to. do.”

1. The petitioner was well aware about the impugned order but he did not challenge the same within a reasonable time, as such, principle of laches is attracted in this case. Reliance in this regard is placed on Shaikh Muhammad Hafiz Ullah vs. Ghulam Yasin and others (1970 SCMR 41) wherein the Hon’ble Supreme Court of Pakistan held as under:

“There was also laches on the part of the petitioner in approaching the High Court. The impugned order was passed in 1962 and the Writ Petition was filed only in 1966. This by itself was a sufficient ground for denying relief to the petitioner.”

In another case cited as Settlement Authority through the Chief Settlement Commissioner, Lahore and another vs. Mst. Akhtar Sultana (PLD 1976 SC 410), the Hon’ble Supreme Court of Pakistan has held as under:

“The delay and laches were so palpable that they should have attracted the notice of the High Court, and the mere fact that no objection was taken at the time was no ground to omit to consider the consequence of delay and laches. It was the duly of the respondent to explain the obvious delay in moving the writ petition. Nevertheless, this Court is entitled to consider the laches on the part of the respondent and to pass such order as the High Court could or should have passed on a true consideration of the palpable delay in making the constitution petition.”

Further reliance is placed on a case cited as Mst. Hawabai and others vs. Muhammad Siddique and another (1987 SCMR 591), wherein the Hon’ble Supreme Court of Pakistan held that the case which suffers from the doctrine of laches can be dismissed on this ground alone.

In case cited as Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another vs. Syed Ashfaque Ali and others (PLD 2003 SC 132), the Hon’ble Supreme Court of Pakistan held as under:

“15 Law is well-settled that a party guilty of gross negligence and laches is not entitled to the equitable relief. One who seeks equity must show that equities lean in his favour.”

The Hon’ble Larger Bench of the Hon’ble Apex Court in a case cited as Jawad Mir Muhammadi and others vs. Haroon Mirza and others (PLD 2004 SC 472), held as under:

“27 .... It is a settled proposition “that the delay defeats equities or equity aids the vigilant and not the indolent”. Relying on the above maxim this Court as well as the High Courts of the Country have refused to come to the aid of a party who had. not been diligent, vigilant and. acted in a prudent manner. It will be appropriate to reproduce the words of Lord Camden L.C. while dealing with the issue of delay and laches from the judgment of Smith v. Clay (1767) 3 Bro. C.C.639n. at 640n observed as under:

A Court of equity has always refused its aid to stale demands, where a. parly has slept upon his right and acquiesced for a great length of time. Nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence; where these are wanting the Court is passive, and does nothing.

1. It will also be useful to reproduce a passage from the book titled Snell’s Equity by John Meghee 13th Edition which appear at page 35 as under:

Now the doctrine of laches in Courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct, and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these lapse of time and delay are most material.

1. From a perusal of the passage/quotations reproduced hereinabove the question of delay/laches in filing the constitutional petition has to be given serious consideration and unless a satisfactory and plausible explanation is forthcoming for the delay in filing a constitutional petition, the same cannot be overlooked or ignored of course, having regard to the facts and circumstances of each case. It will also be useful to reproduce another passage from the same book appearing on page 35 as under:

Laches essentially consists of a substantial lapse of time coupled with the. existence of circumstances which make it inequitable to enforce the claim. Delay will accordingly be fatal to a claim for equitable relief if it is evidence of an agreement by the claimant of abandon or release his right, or if it has resulted, in the destruction or loss of evidence by which the claim might have been rebutted, or if the claim is to be business (for the claimant should not be allowed to wait and see if it prospers), or if the claimant has so acted as to induce the defendant to alter his position on the reasonable faith that the claim has been released or abandoned. But apart from such circumstances delay will be immaterial. There can be no abandonment of a right without full knowledge, legal capacity and free will, so that ignorance or disability or undue influence will be a satisfactory explanation of delay.

1. The appellants being fully aware of raising of construction of the three floors in dispute by the Builders did not immediately approach the High Court by way of constitutional petition and allowed a period of 16 months to lapse before approaching the High Court during which period the construction was continuously in progress and, was completed in accordance with the revised, plan. The inaction of the appellants for a period of 16 months whuld certainly lead to a presumption that they had not only agreed to the construction of the three floors in dispute but had induced the builder and all other persons concerned that they had no objection to the construction thereof. In the case of Ardeshir Cowasjee 1999 SCMR 2883 the facts and circumstances did not lead to a presumption either that the aggrieved persons had surrendered their rights which according to them were violated by the . construction of the high rise buildings or given an inducement or understanding to the builders and all other concerned persons that they had accepted the raising of the high rise buildings as a result of which this Court found that the petition was not hit by laches. However, as enunciated above the facts in the case in hand are totally different and the delay of 16 months could not be overlooked or ignored in the absence of satisfactory and plausible explanation.”

Another reliance is placed on a case cited as State Bank of Pakistan through Governor and another vs. Imtiaz Ali Khan and others (2012 SCMR 280), wherein the Hon’ble Supreme Court of Pakistan held as under:

“28 .... Laches is a doctrine whereunder a party which may have a right, which was otherwise enforceable, loses such right to the extent of its enforcement if it is found by the Court of a law that its case is bit by the. doctrine of laches/limitation. Right remains with the party but it cannot enforce it. The limitation is examined by the Limitation Act or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved do not approach the appropriate forum within the stipulated period/time, the grievance though remains but it cannot be redressed because if on one hand there was a right with a party which he could have enforced against the other but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party.

It is settled principle of our jurisprudence as well that delay defeats equity and that equity aids the vigilant and not the indolent.”

This Court dismissed a Writ Petition No. 68-R/2002 on the ground of laches vide judgment dated 07.07.2015 which has been upheld by the Hon’ble Supreme Court of Pakistan in a recent judgment cited as Allah Rakha (deceased) through LRs and others vs. Additional Commissioner (Revenue) Gujranwala and others (2020 SCMR 502) with the following observation:

“4. In the instant case, when the matter was scrutinized by the Civil. Court, Plaint was rejected and the Appeal was also dismissed, then challenging the same order dated 09.02.1970 of the Settlement Authorities through a Writ Petition filed in the year 2002 was rightly dismissed by the learned High Court. The principle of laches was also rightly applied, keeping in view the principle of laches in mind.”

In the light of a judgment of this Court cited as Mian Aurangzeb Noor vs. Rent Controller, Lahore and another (2012 CLC 1729), reasonable time/period for filing a constitutional petition is 90 days. Relevant portion of the judgment (supra) is as under:

“8. Lastly it may be stated that the learned Rent Controller on 11.5.2009 passed order for striking off the defence and the petitioner after a lapse of more than one year approached this Court through instant petition for setting aside the impugned order. The Hon’ble Supreme Court in the cases of Manager, Jammu & Kashmir State Property v. Khuda Yar (PLD 1975 SC 678) and Pakistan International Airlines Corporation and others v. Tanveer-ur-Rehman and other (PLD 2011 SC 676) has held that aggrieved person may invoke the jurisdiction of the High Court under Article 199 of the Constitution within a “reasonable time” and interpreted “reasonable time” to be 90 days.” The present petition, therefore, suffers from laches.”

In this regard, this Court in a case cited as Sui Northern Officers Cooperative Housing Society Ltd. vs. Member (Judicial-V), Board of Revenue, Punjab and others (2017 YLR 1348), held as under:

“16 …. It is interesting to note that the original allottee has not challenged, the impugned order dated 19.01.2015 till to date, whereas the petitioner, who is subsequent, purchaser filed the instant petition calling in question the vires of aforesaid order after the lapse of 2 years 6 days from the date of passing of the same, as such, the principle of laches is fully attracted in the instant case, so, the instant writ petition is also not maintainable on this score.”

In another case cited as Province of Punjab through Secretary (Colonies), Board of Revenue, Punjab and others vs. Muhammad Yaqoob (2020 CLC 1390), has observed as under:

“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 also placed on Member, Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore vs. Khuda Bakhsh and’ others (2005 SCMR 1380), Khursheed Latif and others vs. Federation of Pakistan and others (2010 SCMR 1081).

1. The impugned order was passed on 21.11.2011 which has been challenged by the petitioners on 05.06.2013, after a considerable period, as such, this matter falls under the past and closed transactions which cannot be re-opened. Reliance is placed on Pakistan International Airlines Corporation vs. Aziz ur Rehinan Chaudhary and another (2016 SCMR 14).

9. From the perusal of record, it reveals that matter in issue pertains to the consolidation proceedings which contains factual controversy and same cannot be resolved in constitutional jurisdiction and this Court ordinarily avoids to re-appraise such factual controversy in its writ jurisdiction as it cannot sit as an appellate Court against the concurrent decisions of Consolidation Revenue Authorities. Reliance is placed on the cases titled as Ghulam Qadir vs. Member Board of Revenue, West Pakistan, Lahore & 4 others (1970 SCMR 292) & Muhammad Husain Munir and others vs. Sikandar & others (PLD 1974 SC 139). In this regard, the Hon’ble Supreme Court of Pakistan in a judgment cited as Allah Rehman and others vs. Amtul Qayyum and another (1989 SCMR 1817), has held as under:

“The petitioners are aggrieved by the dismissal of their constitution petition by the High Court whereby it declined to interfere with the order of the Board of Revenue affirming the order of the Additional Commissioner who had made certain adjustments in the consolidation scheme as result of which the petitioners were deprived of certain fields falling in Nian area. It was not their case that as a result of these adjustments they were given less land than their actual entitlements. It has already been held by this Court that the orders made by the Consolidation authorities with regard to allocation of land are not fit matters which can be agitated in writ jurisdiction; see Muhammad Hussain Munir v. Sikander (PLD 1974 S.C.I39). The High Court was therefore justified in dismissing the Constitution petition of the petitioners. Leave is refused.

Reliance is also placed on Asad Riaz vs. Member, Board of Revenue, Punjab, Lahore and 4 others (1997 SCMR 1611), wherein it has been held as under:

“3. Having heard the learned counsel at length and having gone through the orders passed by the Consolidation Officers as well as the order of the learned Member, Board of Revenue, we are of the considered view that the pleas raised are without merit. The Proviso to subsection (4) of Section 13 of the Consolidation of Holdings Ordinance provides that no order shall be passed reversing or modifying any proceedings or order of a subordinate Revenue Officer and affecting any question of right between private persons without giving those persons an opportunity of being heard. Admittedly, rights of Syed Riaz Hussain, Shah, Mst. Musarrat Riaz, Imdad Hussain and Ms. Usma Riaz have not been affected in any manner by ‘modification in the scheme pertaining to the petitioner and respondents. Only a piece of land measuring 4 kanals of Khasra No. 33/5 has been excluded from the Wanda of the petitioner and in lieu thereof 4 Kanals of land of Khasra No. 34/2/3 Min. has been included. This modification was effected after holding that the said land is contiguous to the main Block, of the respondents and by taking the same away, the main plot of the petitioner does not get disturbed and that the said arrangement appears to be suiting the convenience of both the parties who were also found agreeable to the said modification. These findings were not challenged before us. It was not the case of the learned counsel for the petitioner that the land withdrawn from him was owned or possessed by him or that his entitlement was reduced in any manner. The question as to which piece of land, Khasra number or Killa Number should have, been given to one or the other party falls for determination by the Revenue Authorities exclusively. The High Court, in Constitutional jurisdiction, cannot sit in judgment against decisions of Revenue Authorities in such matters.

Further reliance is placed on Ghulam Rasool and others vs. Member (Consolidation), Board of Revenue and others (2004 SCMR 587), the relevant portion whereof is as under:

“7. The review of the case law by both sides does indicate that the precise allocations and demarcations have to be left with the Consolidation Officer and this Court, in exercise of jurisdiction under Article 199 of the Constitution, should not reappraise such factual controversies. It should concern itself with the legality of the orders and not the propriety of the same. In any case, after hearing the two sides as well as the learned Assistant Advocate-General, I have not been persuaded to hold that the impugned directions of the learned M.B.R, in any manner are unjust or have caused miscarriage of justice.”

The above view has been reiterated in case reported as Manzoor Hussain & others vs. Member (Judicial-II), Board of Revenue & others (2006 SCMR 951) and Dildar Ahmad & others vs. Member (Judicial-III), BOR Punjab Lahore & Another (2013 SCMR 906).

1. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned orders and has also not identified any jurisdictional defect calling for interference by this Court.

2. In view of above, these writ petitions are dismissed being hit by laches as well as devoid of any merits.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 222

Present: Masud Abid Naqvi, J.

ABDUL RASHEED--Petitioner

versus

LEARNED ADDL. DISTRICT JUDGE, BHAKKAR etc.--Respondents.

W.P. No. 233749 of 2018, decided on 11.3.2019.

Constitution of Pakistan, 1973--

----Art. 199--Suit for recovery of maintenance allowance, dower, dowry articles and gold ornaments--Partially decreed--Appeal--Dismissed--Non-challenging of entries of nikahnama--Obligation of petitioner--Preference of documentary evidence--Challenge to--Case of petitioner/defendant is that respondent/plaintiff No. 1 maneuvered entries of Nikahnama but failed to prove same through confidence inspiring evidence--Petitioner/defendant has not challenged entries of Nikahnama before any competent forum. There is no cavil to proposition as held in number of judgments by superior Courts that oral evidence cannot be given preference to documentary evidence--Petitioner/defendant is under an obligation to pay of Rs. 5,000/-and a house measuring 15-marlas or its market value as dower/haq-ul-Mehar to Respondent No. 3/ex-wife as he never objected to entry in Nikahnama at time of marriage rather endorsed same by signing Nikahnama. Hence, findings of learned Courts below are upheld/maintained--Courts below have meticulously examined entire evidence of parties and thereafter reached at conclusion regarding controversy. Neither any misreading or non-reading of evidence on record nor any infirmity, legal or factual, has been pointed out in impugned judgments and decrees passed by Courts below--Petition was dismissed. [Pp. 224 & 225] A, B, C & D

2010 SCMR 473 and 2010 SCMR 1073 ref.

Ch. Imran Arshad Naro, Advocate for Petitioner.

Mr. Muhammad Aslam Ch. Advocate for Respondents No. 3 and 4.

Date of hearing: 11.3.2019.

Order

Brief facts leading to the filing of this writ petition are that the Respondents No. 3 and 4/plaintiffs being wife and son filed a composite suit for recovery of maintenance allowance, dower, gold ornaments, dowry articles and possession of house. The defendant/petitioner resisted the suit by way of filing the written statement and by raising factual as well as legal objections. Out of divergent pleadings of the parties issues were framed by the learned trial Court. The parties produced their respective evidence and after recording the same, learned trial Court partially decreed the suitvide judgment and decree dated 28.03.2017 to the effect that the plaintiff No. 1 is entitled to recover her maintenance allowance at the rate of Rs. 6000/-per month for her Iddat period. The plaintiff No. 2 being minor son is entitled to maintenance allowance at the rate of Rs. 2500/-per month with 10% annual increase from the institution of the suit till his legal entitlement. The plaintiff No. 1 is also entitled to recover Rs. 5000/-as dower on demand. She is also entitled to get alternate price of house measuring 15-marlas from defendant. Plaintiff No. 1 is also entitled to recover Rs. 50,000/-also alternate price of dower articles, however, the suit for recovery of gold ornament was dismissed. Feeling aggrieved, petitioner/defendant filed appeal and learned Additional District Judge vide judgment & decree dated 17.04.2018 dismissed the same. Being dissatisfied, the petitioner/defendant has filed the instant writ petition and challenged the validity of the judgments and decrees passed by the learned Courts below to the extent of dower of Rs. 5000/-and a house measuring 15-marlas.

1. I have heard the arguments advanced by the learned counsel for the parties and perused the record.

3. From bare reading of Nikahnama, there remains no doubt that as per entries at column No. 13 and 17 of Nikahnama/Exh.P.2, Rs. 5,000/-and a house measuring 15-marlas are mentioned as deferred dower. Learned Family Court decreed the suit for recovery of dower of Rs. 5,000/- and house measuring 15-marlas or its market value and in appeal learned appellate Court endorsed the finding of Family Court. The case of the petitioner/defendant is that respondent/plaintiff No. 1 maneuvered the entries of Nikahnama but failed to prove the same through confidence inspiring evidence. The Nikahnama is a public document and presumption of truth is attached to it until and unless otherwise proved. The petitioner/defendant has not challenged the entries of Nikahnama before any competent forum. There is no cavil to the proposition as held in number of judgments by the superior Courts that oral evidence cannot be given preference to the documentary evidence. Reliance is placed on Shamshad VS Arif Ashraf Khan and others (2010 SCMR 473). The petitioner/defendant candidly/ frankly confirmed his signature on the Nikahnama. Therefore, the petitioner/defendant is under an obligation to pay of Rs. 5,000/-and a house measuring 15-marlas or its market value as dower/haq-ul-Mehar to Respondent No. 3/ex-wife as he never objected to the entry in Nikahnama at the time of marriage rather endorsed the same by signing the Nikahnama. Hence, the findings of learned Courts below are upheld/maintained.

1. Even otherwise, with respect to interference in concurrent findings of the Courts below, the Hon’ble Supreme Court of Pakistan in a case reported as Mst Farhat Jabeen vs. Muhammad Safdar and others (2011 SCMR 1073) has held that:

“It is settled rule by now that interference in the findings of facts concurrently arrived at by the Courts should not be lightly made, merely for the reason that another conclusion shall be possibly drawn, on the reappraisal of the evidence; rather interference is restricted to the cases of misreading and non-reading of material evidence which has bearing on the fate of the case.”

5. In the present case, no such defects have been pointed out by the learned counsel for petitioner in order to seek interference by this Court. Learned Courts below have meticulously examined the entire evidence of the parties and thereafter reached at the conclusion regarding the controversy. Neither any misreading or non-reading of evidence on record nor any infirmity, legal or factual, has been pointed out in the impugned judgments and decrees passed by the learned Courts below, therefore, this writ petition is dismissed.

(Y.A.)) Petition dismissed

PLJ 2021 Lahore 225

Present: Ch. Muhammad Iqbal, J.

MUHAMMAD ARSHAD--Petitioner

versus

MUHAMMAD ILYAS NAVEED etc.--Respondents.

C.R. No. 23821 of 2020, decided on 16.11.2020.

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

----Ss. 96, 115, O.I R. 10--Specific Relief Act, (I of 1877), S. 9--Suit for possession through pre-emption--Application for impleading a party--Dismissed--Revision petition--Dismissed--Conceding statement--Suit was decreed--Sale agreement--Bona fidepurchaser--Parameters of Section 96 of C.P.C.--Challenge to--Respondent No. 1 contended that he purchased suit land from Respondent No. 5, Muhammad Asif Nadeem, being bona fide purchaser, through sale mutation No. 1230 for land measuring 01 Kanal, mutation No. 1231 for land measuring 05 Kanal 06 Marla and mutation No. 1250 for land measuring 18 Kanal 03 Marla--Respondent No. 1 being aggrieved party has a right to file appeal or participate in proceedings of appeal if is adversely effected by judgment & decree passed in a suit--Appellate Court, after considering parameters of Section 96, C.P.C and law laid down by Hon’ble Supreme Court of Pakistan has rightly allowed application for leave to appeal which order does not require any I interference by this Court--Counsel for petitioner has not been able to point out any illegality or material irregularity in impugned order and has also not identified any jurisdictional defect calling for interference by this Court--Revision petition was dismissed. [Pp. 226 & 229] A, B, C & D

PLD 1969 SC 65, 1997 SCMR 171 and 2007 SCMR 882 ref.

Syed Imdad Hussain Shah, Advocate for Petitioner.

Date of hearing: 16.11.2020.

Order

Through this civil revision, the petitioner has challenged the order dated 10.02.2020 whereby the learned Additional District Judge, Gojra accepted the application for leave to appeal filed by the Respondent No. 1 and admitted his appeal against judgment & decree dated 31.07.2018 for regular hearing.

1. Brief facts of the case are that the petitioner filed a suit for possession through pre-emption against the Respondents No. 3 & 4, who filed contesting written statement. The learned trial Court framed issues and both the parties recorded their oral as well as documentary evidence. On 28.11.2013, the Respondent No. 1/appellant filed an application under Order I Rule 10 C.P.C, on the ground that he had purchased the suit property from Respondents No. 3 & 4, which was dismissed by the learned trial Court on 26.04.2015. Against the said order, the Respondent No. 1 filed revision petition which was dismissed by the learned revisional Court on 15.05.2015. The Respondents No. 3 got recorded her conceding statement on her behalf as well as on behalf of Respondent No. 4 in favour of the petitioner before the learned trial Court on 15.05.2018 upon which the suit was decreed on 31.07.2018. The Respondent No. 1 filed appeal against the judgment & decree dated 31.07.2018 alongwith petition for leave to appeal. The learned appellate Court vide order dated 10.02.2020, allowed the petition for’ leave to appeal filed by Respondent No. 1 and admitted the appeal for regular hearing. Hence, this civil revision.

2. I have heard the arguments of learned counsel for the petitioner and have gone through the record with his able assistance.

3. The Respondents No. 3 & 4/defendants sold the suit land to Respondent No. 5, Muhammad Asif Nadeem, received consideration, executed an agreement to sell and irrevocable general power of attorney Bearing No. 346/4 dated 14.10.2010. The petitioner filed suit for pre-emption on 06.01.2010 in which, on 15.05.2018, Respondent No. 3/defendant, Mst. Asia Bibi, appeared in person as well as on behalf of Respondent No. 4, her husband, as her special attorney and got recorded conceding statement in favour of the petitioner/plaintiff having no objection on decreeing the suit.

The Respondent No. 1 contended that he purchased the suit land from Respondent No. 5, Muhammad Asif Nadeem, being bona fide purchaser, through sale Mutation No. 1230 dated 29.05.2012 for land measuring 01 Kanal, Mutation No. 1231 dated 29.05.2012 for land measuring 05 Kanal 06 Marla and mutation No. 1250 dated 30.10.212 for land measuring 18 Kanal 03 Marla.

As per the law laid down by the Hon’ble Supreme Court of Pakistan, the Respondent No. 1 being aggrieved party has a right to file appeal or participate in the proceedings of appeal if the is adversely effected by the judgment & decree passed in a suit. Reliance in this regard is placed on H.M. Saya & Co., Karachi vs. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 SC 65) wherein the Hon’ble Supreme Court of Pakistan has held as under:

“There can be no dispute that the only party which was adversely affected by the order of ad interim injunction was Respondents No. 1. We are satisfied that Saya & Co, deliberately omitted to make them parties with the intention of avoiding a contest. They knew fully well that the reliefs sought were really directed against Wazir Ali Industries, Limited, and their bankers. A stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from filing an appeal from an order passed therein. It is true that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. The facts of this case are clear example in point. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same. Section 96 of the Civil Procedure Code deals with appeals from decrees and Section 104 deals with appeals from orders. These provisions do not in terms say who is entitled to prefer an appeal. The Code, however, lays down that it is the decree or the order that has to be appealed against. If the decree or order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceeding.

The learned counsel for the appellants has, in support of his contention, relied upon three decisions.

In the case of J. Rustamji of Lahore v. Official Liquidator of the People’s and Amritsar Bank, Ltd. and another (1), an appeal filed under Section 169 of the Companies Act by a creditor against an order sanctioning a compromise was found to be incompetent as the appellant had not qualified himself under rule 58 of the Rules framed under the Act to attend the proceedings and was not a party to the proceedings before the trial Judge. In the case of Indian Bank Limited, Madras v. Saith Bansiram Jashamal (Firm) and another (2) an appeal preferred by a creditor of an insolvent against the decree in a suit in which the Official Receiver was impleaded as a party was found to be incompetent as the appellant was not a party to the suit. This decision, however, was not fully approved in the case of Sm. K, Pannalagu Ammal v. The State of Madras and others (3) wherein the right of the appellate Court to grant permission to a person who is not a party to the suit but is affected by the judgment, decree or order of the trial Court to prefer an appeal against the same was recognized. Lastly the learned counsel for the appellants referred to the case of Al-Kisan Transport Co, Ltd., v. Regional Transport, Authority, Lahore (1). In this case it was observed:

“The only reasonable interpretation that can be placed on the language employed in the relevant provisions of the Code of Civil Procedure is that an appeal can be instituted by a party to the proceedings in which the order sought to be appealed against was passed and this conclusion is inevitable even if I proceed on the assumption that the Code of Civil Procedure did not in terms say that an appealed could be presented by a party to the proceedings in which the order appealed against was passed. It in inconceivable that the intention of the authors of the Code of Civil Procedure, parts of which devote meticulous attention to the question what persons could or should be parties to proceedings in Courts, was that an appeal could be lodged by person who was not a party to the proceedings in which the order intended to be appealed against was passed. If this were so, numerous rules occurring in the Code of Civil Procedure with regard to impleading persons as parties to the proceedings governed by that Code would be entirely redundant and in the absence of very cogent proof to that effect I am not prepared to hold that the Legislature which was responsible for passing the Code of Civil Procedure had indulged in redundancy on a very prolix scale.”

We may point out, with due respect, that it has not been possible for us to accept the above observations.

The English Courts have consistently followed the practice that a person who is not a party to a suit or a proceeding may prefer an appeal if he is affected by the judgment, decree or order of the trial Court provided he obtains leave from the Court of appeal. The test applied in granting leave to appeal, in such cases, is that if the person who wants to prefer the appeal might properly have been a

party in the suit or proceeding then he may obtain leave to appeal. The case of in re: B. An Infant (2) on which Mr. Dingoomal has relied lends support to the above proposition. In our view this is an equitable rule which should be followed in the absence of any provision to the contrary in the Code of Civil Procedure.”

Reliance is also placed on the cases cited as Rafique Ahmad Chaudhry vs. Ahmad Nawaz Malik and others (1997 SCMR 171) and Muhammad Shahban and others vs. Falak Sher and others (2007 SCMR 882).

5. The learned appellate Court, after considering the parameters of Section 96, C.P.C and the law laid down by the Hon’ble Supreme Court of Pakistan has rightly allowed the application for leave to appeal which order does not require any interference by this Court.

6. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned order and has also not identified any jurisdictional defect calling for interference by this Court.

1. In view of above, this civil revision being devoid of any merits is hereby dismissed. No order as to costs. Anyhow, as the appeal is still pending before the learned appellate Court;, as such, the petitioner, if so desire, can raise all the objections before the said Court.

(Y.A.) Revision petition dismissed

PLJ 2021 Lahore 229

Present: Ch. Muhammad Iqbal, J.

RanaTAHIR HUSSAIN--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, FAISALABAD etc.--Respondents

W.P. No. 240061 of 2018, decided on 17.11.2020.

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

----Ss. 9 & 12--Constitution of Pakistan, 1973, Art. 199--Civil Procedure Code, (V of 1908), O.XXIX, Rr. 1 & 2--Suit for possession through specific performance--Application for grant of temporary injunction--Accepted--Appeal--Dismissed--Agreement to sell--Partially payment of consideration amount--Pendency of remaining amount--Concurrent findings--Challenge to--Petitioner was duty bound to deposit remaining consideration amount in compliance of order aforesaid but instead of complying with order, challenged same before appellate Court which also dismissed appeal of petitioner--This conduct of petitioner/plaintiff constitutes a deliberate default on his part and non-compliance of Court’s order dismantles his assertion of readiness and willingness to perform his part of contract/agreement--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 to have any equitable or discretionary relief--Petitioner/plaintiff has alleged in his plaint regarding payment of partial payment of consideration i.e. Rs. 10,00,000/- which has also been admitted by respondent/defendant whereas controversy is regarding remaining consideration of Rs. 10,00,000/- as such, trial Court rightly passed impugned order directing petitioner/plaintiff to deposit remaining consideration amount in Court--Counsel for petitioner has not been able to point out any illegality or material irregularity in impugned orders passed by Courts below and has also not identified any jurisdictional defect--Concurrent findings of facts are against petitioner which are not called for any interference by this Court in absence of any illegality or any other error of jurisdiction--Petition was dismissed. [Pp. 231 & 232] A, B & C

PLD 2014 SC 506, 2017 SCMR 2022, 2020 SCMR 171 & 2007 MLD 1710 ref.

Mr. Muhammad Amir Javed Bhatti, Advocate for Petitioner.

Ch. Amin Rehmat, Advocate for Respondents.

Date of hearing: 17.11.2020.

Order

Through this writ petition, the petitioner has challenged the order dated 04.07.2018, passed by the learned Civil Judge, Faisalabad whereby the petitioner was directed to deposit the remaining consideration amount of Rs. 10,00,000/- within one month and the judgment dated 24.09.2018, passed by the learned Additional District Judge, Faisalabad dismissing the appeal of the petitioner.

1. Brief facts of the case are that the petitioner/plaintiff filed a suit for possession through specific performance on the basis of an agreement to sell dated 06.06.2017, alleging therein that he purchased the suit land, paid consideration and received possession of the suit land. The respondents/defendants refused to transfer the suit land in the name of the petitioner/plaintiff, upon which he filed instant suit. Alongwith the suit, the petitioner/plaintiff also filed an application under Order XXXIX Rule 1 and 2 C.P.C which was accepted by the learned trial Court’ with the condition to deposit the remaining consideration amount of Rs. 10,00,000/- within one month, vide order dated 04.07.2018. Against the said order, the petitioner filed an appeal which was dismissed by the learned appellate Court vide judgment dated 24.09.2018. Hence, this petition.

2. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

4. The learned trial Court, vide order dated 04.07.2018, allowed the application under Order XXXIX Rule 1 and 2 C.P.C of the petitioner directing him to deposit the remaining consideration amount of Rs. 10,00,000/- in the Court. The petitioner was duty bound to deposit the remaining consideration amount in compliance of the order aforesaid but instead of complying with the order, challenged the same before the learned appellate Court which also dismissed the appeal of the petitioner. This conduct of the petitioner/plaintiff constitutes a deliberate default on his part and non-compliance of the Court’s order dismantles his assertion of readiness and willingness to perform his part of the contract/agreement. 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 to have any equitable or discretionary relief as held by the Hon’ble Supreme Court of Pakistan in a case cited as BootayKhan 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) and Hamood Mehmood vs. Mst. Shabana Ishaque & others (2017 SCMR 2022). 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) has 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.”

5. The petitioner/plaintiff has alleged in his plaint regarding payment of partial payment of consideration i.e. Rs. 10,00,000/- which has also been admitted by the respondent/defendant whereas the controversy is regarding the remaining consideration of Rs. 10,00,000/- as such, the learned trial Court rightly passed the impugned order directing the petitioner/plaintiff to deposit remaining consideration amount in the Court.

1. So far as the stance of the petitioner/plaintiff that he had paid the said amount in cash to the respondent/defendant, this fact requires to be proved through evidence which is yet to be recorded.

7. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned orders passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of facts are against the petitioner which are not called for any interference by this Court in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case of Zulfiqar Ali v. Judge, Family Court & 7 others (2007 MLD 1710).

1. Resultantly, this writ petition, being devoid of any force, is hereby dismissed.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 232

Present: Muhammad Ameer Bhatti, J.

SNGPL--Appellant

versus

GHULAM MOHY-UD-DIN--Respondent

R.F.A. No. 52612 of 2019, heard on 12.12.2019.

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

----S. 115--Suit for recovery by appellant was dismissed and suit filed by respondent was decreed--Installation of meter for domestic use--Charging of commercial tariff--Non-issuance of notice--Non-preparation of report by checking inspector--Non-providing of opportunity of hearing--Challenge to--Respondents meter was installed at his premises for domestic use, whereas disputed bill for particular month was issued charging him commercial tariff--Before issuing/charging him commercial tariff neither any notice informing its use by consumer for commercial purpose was sent to him nor any report prepared by checking Inspector showing use of gas for commercial activities was brought on record necessary to charge commercial tariff--It is established law that if any consumer using any gas/electricity, other than provided mechanism or misusing by tampering/slowing meter he is liable to be charged according to rules/regulations but before preparing/issuing detection bill he must have been provided opportunity of hearing besides confronting collected incriminating evidence regarding misuse of gas--Record was silent with regard to incriminating evidence involving respondent--No document was placed on record to substantiate charging of commercial tariff, therefore, Gas Utility Court after examining all these aspects rightly rejected claim of appellant and decreed suit of respondent--There is no illegality or irregularity in impugned judgment warranting interference--Appeal was dismissed. [Pp. 233 & 234] A & B

Mr. Khalil-ur-Rehman, Advocate for Appellant.

Mr. Muhammad Kamran, Advocate for Respondent.

Date of hearing: 12.12.2019.

Judgment

The suit for recovery of Rs. 83,140/- regarding non-deposit of bill was filed before the learned Gas Utility Court. On the other hand, respondent also challenged the validity of the amount of bill and the Gas Utility Court vide a consolidated judgment dated 30.04.2019 dismissed the suit of the appellant and decreed the suit of the- respondent.

1. I have heard learned counsel for the parties and gone through the record.

3. It is established from the record that the respondent’s meter was installed at his premises for domestic use, whereas disputed bill for the particular month was issued charging him commercial tariff. Before issuing/charging him commercial tariff neither any notice informing its use by the consumer for commercial purpose was sent to him nor any report prepared by the checking Inspector showing the

use of gas for commercial activities was brought on record necessary to charge the commercial tariff.

It is established law that if any consumer using any gas/electricity, other than provided mechanism or misusing by tampering/slowing the meter he is liable to be charged according to rules/regulations but before preparing/issuing detection bill he must have been provided opportunity of hearing besides confronting collected incriminating evidence regarding misuse of gas. Record was silent with regard to incriminating evidence involving the respondent. No document was placed on record to substantiate charging of commercial tariff, therefore, the learned Gas Utility Court after examining all these aspects rightly rejected claim of the appellant and decreed the suit of the respondent. There is no illegality or irregularity in the impugned judgment warranting interference; hence this appeal having no force, is hereby dismissed. No order as to costs.

(Y.A.) Appeal dismissed

PLJ 2021 Lahore 234 [Multan Banch, Multan]

Present:Anwaarul Haq Pannun, J.

MUHAMMAD WASEEM--Petitioner

versus

STATE etc.--Respondents

W.P. No. 16900 of 2019, decided on 20.11.2019.

Constitution of Pakistan, 1973--

----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 324, 336, 337-F(iii), 337-F(i) & 417(2-A)--Request for physical remand--Declined--Revision petition--Dismissed--Maintainability--Challenge to--On analogy of Section 417(2-AJ Cr.P.C, petitioner is an aggrieved person and after dismissal of revision petition by Additional Sessions judge filed by State, has locus standi to file instant petition before this Court, thus, objection raised by counsel for respondent regarding maintainability of this petition, is not tenable in view of law laid down by Superior Courts on subject--It is observed that respondent remained on physical remand with investigating officer for nine days for purpose of recovery of weapon of offence, i.e. pistol but during this period, no substantial progress has been made by him in this regard--Magistrate, in impugned order has rightly observed that investigating officer was seeking physical remand of accused in stereo-type manner and had not made any hectic effort to conclude investigation despite availing nine; days physical remand of accused--Magistrate was not under obligation to grant full fourteen days physical remand of accused-respondent at whims and wishes, of complainant or investigating officer--Due to efflux of time, there is hardly any possibility of effecting recovery of weapon of offence on pointing out of respondent in case this petition is allowed and physical remand of respondent for further five days is granted to investigating officer--For what has been discussed above, no perversity, illegality and material irregularity has been found in impugned order/judgment passed by both Courts below--Petition was dismissed. [Pp. 236 & 237] A, B, C & D

Malik Muhammad Siddique Kamboh, Advocate for Petitioner.

Mr. Zulfiqar Ali Sidhu, Assistant Advocate General for State.

Rao Shakeel Ahmad, Advocate for Respondent No. 5.

Date of hearing: 20.11.2019.

Order

Through the instant writ petition in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called-in-question the vires of order dated 02.09.2019 passed by learned Magistrate Section-30, Shujabad, whereby request of the investigating officer for granting five days physical remand of Talha alias Talli/Respondent No. 5 (hereinafter to be referred as ‘the respondent) accused of case FIR No. 03/19 dated 02.01.2019, registered against him in respect of offences under Sections 324, 336, 337-F(iiii) &337-F[i] PPC, at Police Station City Shujabad, District Multan has been declined and judgment dated 10.10.2019 passed by learned Additional Sessions Judge, Shujabad whereby revision petition filed against the aforesaid order has been dismissed.

1. Brief facts of the case are that the petitioner lodged the aforesaid criminal case against the respondent, who was arrested by the police and produced before the learned Area Magistrate for physical remand for the recovery of pistol .30-bore but the learned Magistrate, while not acceding to the request of the police, proceeded to send him to judicial lock up vide impugned order dated 02.09.2019. Feeling aggrieved, the petitioner filed criminal revision before the learned Additional Sessions Judge, Shujabad which also failed as the same has been dismissed, vide impugned judgment dated 10.10.2019, hence this writ petition.

2. At the outset, learned counsel for the respondent, while relying upon the case reported as “Mirza Sardar Baig v. M. Akmal Paul and 6 others” (2017 P.Cr. L J 691), has raised objection regarding the maintainability of this petition and submits that the petitioner has no locus-standi to challenge the impugned judgment rather the investigating officer is competent to challenge the same before this Court.

3. While responding the above query and relying upon the dictum laid down in case reported as “Riaz ul Haq and another v. Muhammcd Naveed and another” (2005 YLR 805), learned counsel for the petitioner, submits that in view of dictum laid down in the referred case, the petitioner being an aggrieved person, is competent to file the instant writ petition hence, the objection raised by learned counsel for the respondent is liable to be discarded.

4. Arguments heard. Record perused.

6. Firstly, taking up the objection raised by learned counsel for the petitioner. After hearing learned counsel for to parties and going through the case-law cited at the bar, I am of the view that on the analogy of Section 417(2-A) Cr.P.C, the petitioner is an aggrieved person and after dismissal of revision petition by the learned Additional Sessions judge filed by the State, has locus standi to file the instant petition before this Court, thus, the objection raised by learned counsel for the respondent regarding maintainability of this petitior, is not tenable in view of law laid down by the Superior Courts on the subject.

7. Now, coming to the merits of the case. It is observed that the respondent remained on physical remand with the investigating officer for nine days for the purpose of recovery of weapon of offence, i.e. pistol but during this period, no substantial progress has been made by him in this regard. Learned Magistrate, in the impugned order has rightly observed that the investigating officer was seeking physical remand of the accused in stereo-type manner and had not made any hectic effort to conclude the investigation despite availing nine days physical remand of the accused. The Magistrate was not under obligation to grant full fourteen days physical remand of the accused-respondent at the whims and wishes, of the complainant or the investigating officer. So far as the argument of learned counsel for the petitioner that as criminal case has already been registered against the first investigating officer of the aforesaid case for conducting defective investigation, there was sufficient reason for setting aside the impugned order/judgment considering the element of mala fide of the investigating officer causing prejudice to the petitioner” case, is

concerned, the same is repelled for the simple reason that accused remained on physical remand for nine days and the investigating officer had made request to the learned Magistrate for his further physical remand for five days which was declined by assigning valid reasons. It is also noticed that the FIR has been registered for causing injuries on the person of the injured/PW at the hands of the respondent, thus, sufficient incriminating material in the shape of medical evidence is already available to the petitioner to prove his case against the respondent. Even otherwise, due to efflux of time, there is hardly any possibility of effecting recovery of weapon of offence on pointing out of the respondent in case this petition is allowed and physical remand of the respondent for further five days is granted to the investigating officer.

8. For what has been discussed above, no perversity, illegality and material irregularity has been found in the impugned order/judgment passed by both the Courts below. The instant petition is without merits, thus, the same stands dismissed.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 237

Present: Ali Baqar Najafi, J.

MUHAMMAD MASOOD-UL-HAQ--Petitioner

versus

JUDGE FAMILY COURT etc.--Respondents.

W.P. No. 16084 of 2014, decided on 22.10.2020.

Constitution of Pakistan, 1973--

----Art. 199--Suit for recovery of dowry articles, dower amount and maintenance allowance--Decreed--Appeal--Dismissed--Concurrent findings--After thought agreement--Consolidated judgments--Challenge to--Family Court while deciding issue No. 1 ordered petitioner to pay Rs. 2000/- per month as previous maintenance from 24.05.2007 simply on ground that petitioner was a low class salaried person--It was further observed under issue No. 2 that since 24.05.2007 both spouses had no interaction and gold ornaments were kept in possession by woman, therefore, were refused--Court however granted 50% of claimed dowry articles and determined it at Rs. 1,70,390/---Interestingly, on 21.01.2009 suit for restitution of conjugal rights was decreed subject to fulfilment of condition of column No. 13 and 16 of nikahnama petitioner had not fulfilled--Besides, petitioner has introduced an afterthought agreement to suggest that these conditions have been waived of, therefore, it was not appreciated--Importantly, it had attained finality--Consolidated judgments and decrees interpreted that said clauses of nikahnama do not appear to be illegal or irrational--Petition was dismissed. [Pp. 238 & 239] A & B

PLD 2011 SC 221 ref.

Malik Matee Ullah, Advocate for Petitioner.

Mr. Muhammad Aslam Chaudhary, Advocate for Respondent.

Date of hearing: 22.10.2020.

Order

Through this constitutional petition, the petitioner has challenged the judgments and decrees dated 15.05.2010 as well as 06.01.2011 whereby the suit for recovery of dowry articles, dower amount and a house as well as for the grant of maintenance allowance was concurrently decreed by the learned Judge Family Court and the appellate Court.

1. Brief facts giving rise to the filing of this constitutional petition are that the marriage between the petitioner and the respondent took place on 19.12.2005 and the respondent claimed to have brought dowry articles worth Rs. 7,02,700/- into the house of the petitioner. The dower amount of Rs. 1 lac and a house was agreed in the nikahnama. However, soon their relationship got strained. Meanwhile, signatures of the respondent were procured on the blank papers by the petitioner. The respondent went to see her ailing mother with two clothes about 02 years 05 months before the institution of the suit and instead of settling the matter with the petitioner, the respondent contracted second marriage. The suit for recovery of past and future maintenance, dowry articles, dower as well as house and Rs. 30,000/- cash was contested by the petitioner claiming that the respondent had already waived of her right of the dower amount and house vide agreement dated 11.02.2006. A civil suit for declaration was also filed and that a suit for restitution of conjugal rights was filed and had tried his level best to bring her back. The suits were consolidated and issues framed and the evidence was recorded. The suits were decided and appeals dismissed hence this writ petition.

2. Arguments heard. Record perused.

4. The learned family Court while deciding issue No. 1 ordered the petitioner to pay Rs. 2000/- per month as previous maintenance from 24.05.2007 simply on the ground that petitioner was a low class salaried person. It was further observed under issue No. 2 that since

24.05.2007 both spouses had no interaction and the gold ornaments were kept in possession by the woman, therefore, were refused. The Court however granted 50% of the claimed dowry articles and determined it at Rs. 1,70,390/-. Interestingly, on 21.01.2009 the suit for restitution of conjugal rights was decreed subject to fulfilment of condition of column No. 13 and 16 of nikahnama the petitioner had not fulfilled. Besides, the petitioner has introduced an afterthought agreement dated 11.02.2006 to suggest that these conditions have been waived of, therefore, it was not appreciated. Importantly, it had attained finality.

5. The consolidated judgments and decrees interpreted that the said clauses of nikahnama do not appear to be illegal or irrational. Reliance can be placed upon case titled “Dr. Asma Ali vs. Masood Sajjad and others” reported as PLD 2011 SC 221. Para 4 of which is relevant and is reproduced as follows:

“4. That once we decide that if the property/house mentioned in the Nikahnama on account of lack of sufficient description leading to its identification then its price, if mentioned in the Nikahnama, can be awarded then in the same way the value of the other property (agricultural), the price of which has not been mentioned in the documentation/Nikahnama, can also be granted if the evolvement of a mechanism for determination of value is possible, which is not in conflict with any provision of law rather in consonance with the established principles for determining the value of property, then the same be resorted to.”

1. In this view of the matter, this writ petition has been found meritless and, is therefore dismissed.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 239

Present:Shujaat Ali Khan, J.

MUHAMMAD FAROOQ AHMED--Petitioner

versus

RIFFAT BIBI etc.--Respondents.

W.P. No. 71738 of 2019, heard on 27.1.2020.

Constitution of Pakistan, 1973--

----Art. 199--Suit for recovery of maintenance--Decreed--Appeal--Dismissed--Concurrent findings--Challenge to--I have observed that admittedly Respondent No. 2 is recorded owner of house which is subject matter of civil proceedings instituted by father of petitioner--Till sale transaction in favour of Respondent No. 2 is annulled by forum of competent jurisdiction, Respondent No. 2 is to be considered as owner and stance of petitioner that he had already got transferred said house in favour of Respondent No. 2, cannot be given any weightage at this stage--It is very strange to note that on one hand petitioner has taken stance that since petitioners had been maintaining themselves from income of house owned by him, they were not entitled to maintenance but on other has shown his readiness to transfer said house in name of respondents--Both these pleas do not coincide with each other--Moreover, when PW-1, during cross-examination, negated suggestion put by petitioner side that house was purchased by petitioner, no illegality has been committed by Courts below while passing impugned verdicts--Petition was dismissed. [P. 241] A & B

2011 SCMR 1073 ref.

Mr. Riasat Ali Cheema, Advocate for Petitioner.

Ms. Gulzar Butt, Advocate for Respondents No. 1 to 4.

Date of hearing: 27.1.2020.

Judgment

Briefly put, Respondents No. 1 to 4 filed suit for recovery of maintenance which was decreed by the learned Judge Family Court, Okara (learned Trial Court) through judgment & decree, dated 25.03.2019, awarding maintenance to Respondents No. 2 to 4 at the rate of Rs. 3,000/-each per month from six years prior to institution of the suit and thereafter at the rate of Rs. 4,000/- each per month till their legal entitlement with 10% annual increase. In addition thereto, Respondent No. 1 was held entitled to recover Rs. 8,000/- as maternity expenses from the petitioner. Aggrieved by the verdict of learned Trial Court the petitioner filed an appeal but without any success as the same was dismissed by the learned Additional District Judge, Okara (learned Appellate Court); hence this petition.

1. Learned counsel for the petitioner contends that the petitioner is only aggrieved of decrees of the Courts below to the extent of past maintenance. Adds that since the decree-holders had been receiving the rent of the house, owned by the petitioner, they were not entitled for any decree. Further adds that proceedings regarding title of the house, purchased by the petitioner in favour of Respondent No. 2, are subjudice before the Court of competent jurisdiction and that the petitioner is ready to transfer the house in favour of decree-holders in lieu of the decree passed in their favour.

2. Conversely, learned counsel representing Respondents No. 1 to 4, while defending the impugned judgments & decrees, contends that mala-fide on the part of the petitioner and his other family members is evident from the fact that his father (grandfather of the minors) filed civil suit challenging the authenticity of the sale transaction in favour of Respondent No. 2 while suing him through his real father and ultimately succeeded to get it decreed through ex-parte judgment & decree, dated 21.07.2009 and the respondents, upon knowledge about the same, filed application for setting aside thereof which was accepted by the learned Civil Judge, through order, dated 20.04.2018 and now the suit is pending subjudice before the Court of competent jurisdiction; that when Respondent No. 1 managed purchase of the house in question by selling her gold ornaments, neither the petitioner nor his father had any concern with the same; that though Respondents No. 2 to 4 were entitled for decree for maintenance from the year 2007 but learned Trial Court fixed period of six years in view of Article 120 of the Limitation Act, 1908 which otherwise is not applicable in familial matters and that mala-fide on the part of the petitioner is manifest from the fact that he has only paid Rs. 3,56,000/- out of the decretal amount.

4. After hearing learned counsel for the parties and scanning the documents, appended with this petition, I have observed that admittedly Respondent No. 2 is recorded owner of the house which is subject matter of the civil proceedings instituted by father of the petitioner. Till the sale transaction in favour of Respondent No. 2 is annulled by the forum of competent jurisdiction, Respondent No. 2 is to be considered as the owner and stance of the petitioner that he had already got transferred the said house in favour of Respondent No. 2, cannot be given any weightage at this stage.

5. It is very strange to note that on the one hand the petitioner has taken the stance that since the petitioners had been maintaining themselves from the income of the house owned by him, they were not entitled to maintenance but on the other has shown his readiness to transfer the said house in the name of the respondents. Both these pleas do not coincide with each other. Moreover, when PW-1, during cross-examination, negated the suggestion put by the petitioner side that the house was purchased by the petitioner, no illegality has been committed by the Courts below while passing the impugned verdicts.

1. 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 discussed above, I see no force in this petition which is dismissed with no order as to costs.

(M.M.R.) Petition dismissed

PLJ 2021 Lahore 242[Multan Bench, Multan]

Present:Asim Hafeez, J.

WILSHIRE LABORATORIES PVT. LTD.--Petitioner

versus

PROVINCE OF PUNJAB, etc.--Respondents

W.P. No. 13615 of 2020, decided on 31.12.2020.

Punjab Procurement Rules, 2014--

----R. 31--Constitution of Pakistan, 1973, Art. 199--Invitation of bids for purchase of drugs and medicines--Submission of bids without pre-bidding objection--Grievance petition--Dismissed--Applicability of Bio-Study Rules--Decision of technical evaluation committee--Withdrawal of contract--Submission regarding violation of Bio-Study Rules, 2017 is misconceived, which rules are not applicable in view of conditions of bidding, nor impede evaluation regarding efficacy/usefulness of quoted drugs/medicines--Responsibility and ownership qua declaration of efficacy/usefulness of drugs, declared responsive and non-responsive, in terms of condition 87, vested with Technical Evaluation Committee, which assumed and exercised responsibility, being conscious of its sensitivity and impact on human life--This Court will not interfere to adjudge technical aspects of decision of Technical Evaluation Committee--allegation of discrimination is without force, which is an afterthought and ill-intentioned attempt to thwart procurement process--It is evident from documents provided that contract was awarded to petitioners with respect to responsive items, which may have been accepted and acted upon by now, without objection--Petitioner has declined to accept award with respect to responsive drugs/medicines--Petitioner has participated with other bidders, accepting terms and conditions of bidding which in terms of rule 31 of Punjab procurement rules, 2014 are formulated for prescribing evaluation criterion and now no objection can be raised regarding condition 87 to disadvantage/prejudice of other bidders, successful or otherwise--judgments referred by counsel are distinguishable and none is applicable to facts of case--I have examined record and do not find any illegality, procedural defect, unfairness or any perverse act/conduct, to prejudice of petitioners--This tendency of initiating litigation after being unsuccessful upon completion of competitive bidding process is deprecated and it is believed that procuring agencies shall take into consideration such undesirable conduct while evaluating bids by such entities in future--Petition was dismissed. [Pp. 245 & 246] A, B, C, D & E

Syed M. Ghazenfur, Advocate for Petitioner.

Mr. Muhammad Ayub Buzdar, A.A.G. for State.

M/s. Haji Muhammad Aslam and Imran Shakir Jauja, Advocates for Respondents.

Date of hearing: 9.12.2020.

Order

Through this single order, I propose to decide instant petition and Constitutional petition bearing W.P. 13614/2020, wherein decisions of the Technical Evaluation Committee and Grievance Redressal Committee were impugned. Both the petitions raise identical questions of law.

1. The subject matter controversy has its origin in the bids invited by procuring agency-Medical Superintendent Nishtar Hospital Multan for purchase of Drugs/Medicines for Nishtar Medical University & Hospital Multan for the financial year 2020-2021 -identified as Tender Enquiry No. IPL - 4547 dated 07.06.2020. Petitioners and other interested bidders submitted bids - quoting respective drugs and medicines - in accordance with the terms and conditions prescribed in the bidding documents. Nothing is evident from the record that pre-bidding objection was raised qua any term or condition, and even if any objection was raised, such issue has no relevance for the decision of instant petitions. As far as the petitioners were concerned, they submitted bids without objection. Bids submitted were evaluated and petitioner was informed that Firm is responsive for further process for all of its quoted items, except item Nos. 53,54,60,61,62,98 & 99 (Recommendation letters of end users are attached for consideration as per terms & conditions clause No. 87 by Medical Superintendent Nishtar Hospital Multan for F.Y 2020-2021 and to be proceeded as per rules). Likewise, petitioner Firm in W.P. No. 13614/2020 was also informed that said Firm was found responsive with respect to few quoted items, except some of the items as mentioned in the decision. Petitioners filed grievance petition and also approached this Court by submitting constitutional petitions bearing W.P. No. 13192/2020 & W.P No. 13191/2020, which were disposed of vide order dated 06.10.2020 with direction to Grievance Redressal Committee, Nishtar Hospital Multan to adjudicate upon and decide complaint(s). Grievance Committee dismissed the complaint and affirmed the decision of the Technical Evaluation Committee. Hence, these petitions.

2. Report/Para-wise comments were filed by the respondents and rejoinder was also filed by the petitioner thereto.

3. Learned counsel for the petitioners submits that evaluation by Technical Committee was illegal, being violative of Bio-Study Rules, 2017. Further submits that no clinical trial or clinical study without a duly issued license can be carried out; that declaration of non-responsive with regard to few of the drugs is of no legal effect when DTL’s tests/analysis reports - Form-7 - provided by Government Analysts Punjab in terms of Rule 11 (1) of the Punjab Drugs Rules, 2007 were provided to the procuring agency. Adds that actually no clinical efficacy/drug usefulness examination was conducted and in absence of such tests no sanctity could be attributed to decision of the Technical Evaluation Committee. Submits that Grievance Committee proceeded to decide the matter in violation of Circular dated 18.10.2017, in terms whereof technical expert from private sector shall form part of the Grievance Redressal Committee in cases of procurements worth Rs. 100 million. Learned counsel referred to judgments reported as “Mohammad Taki Khan vs. Jang Singh” (AIR 1935 All 529), “Miyana Hasan Abdulla And Anr. vs. State of Gujarat” (AIR 1962 Guj 214, (1962) GLR 107), “Messrs Nawabsons Laboratories (Pvt). Limited through Managing Director vs. Government of Punjab, Health Department, through Secretary, Civil Secretariat, Lahore and 5 others “ (PLD 2003 Lahore 115) and “Muhammad Jamil and another vs. The State through Provincial Drug Inspector. Quetta” (PLD 2012 Balochistan 140), “Hafiz Khalil vs. The State” (1996 P.Cr.L.J 1183).

4. Conversely, learned counsel appearing for Nishtar Hospital, and learned Law Officer, submits that procurement was carried out in accordance with the mandate of Punjab Procurement Rules, 2014 (Rules) and as per the terms and conditions advertised/prescribed in bidding documents. It is emphasized that clinical efficacy/usefulness of the quoted drugs have to be ascertained by end-users/technical committee — refers to condition 87 of the terms of bidding. Further submits that adequate opportunities were provided to the petitioners to present its case before the Grievance Redressal Committee; allegations of discrimination are without any basis; compliance of condition of Circular is not mandatory condition, as absolute compliance of procurement rules was ensured.

5. Arguments heard. Record perused.

6. This Court in the exercise of constitutional jurisdiction will confine itself to determination of questions of law, i.e., to see if any illegality is committed; if element of procedural unfairness is evident and/or particular bias was demonstrated against the petitioners. And technical aspects of the matter, i.e, appraisal or analysis of report or decision reached by the Technical Evaluation Committee, which issues require appreciation of facts, are not interfered with.

7. The heart of the controversy is condition 87 of the bidding documents, which, for convenience, is reproduced hereunder:

“87. Clinical Efficacy/Usefulness of quoted items will be evaluated by the end-user(s)/technical committee and shall be given 100 % weight age. If the product is failed to satisfy the clinical parameters and not approved by the end —user(s)/technical committee on clinical grounds, it will be rejected in-spite of qualifying other parameters.”

9. There is no cavil to the fact that condition spells out core requirement of evaluating the clinical efficacy/usefulness of quoted items by the end-user(s)/technical committee for satisfying itself regarding clinical parameters/clinical grounds. It is evident from the text of the Technical Evaluation Committee decision that said exercise was carried out, reference to recommendation letters is an adequate testimony to said fact. The recommendation letters enclosed manifest evaluation qua efficacy and usefulness. The mechanism adopted, veracity of recommendation letters - enclosed with the report/para-wise comments - opinions expressed, and determination qua the results procured are all technical matters and are not subject of exercise of judicial review jurisdiction. The submission that provisioning of DTL’s certificates, confirming that items quoted are of standard quality and have passed a test, is sufficient compliance of conditions of bidding documents and such tests be per se taken as proof of clinical efficacy/usefulness, is fallacious and bound to fail, when examined in the context of the details of results of tests/analysis -provided against serial 8 of DTL’s certificate. The submission regarding violation of Bio-Study Rules, 2017 is misconceived, which rules are not applicable in view of conditions of bidding, nor impede evaluation regarding efficacy/usefulness of quoted drugs/medicines. The efficacy/usefulness of quoted items was ascertained in accordance with condition 87 of bidding documents, despite inclusion of which condition petitioners participated in the bidding process. It is pertinent to mention that responsibility and ownership qua declaration of efficacy/usefulness of drugs, declared responsive and non-responsive, in terms of condition 87, vested with the Technical Evaluation Committee, which assumed and exercised responsibility, being conscious of its sensitivity and impact on human life. This Court will not interfere to adjudge technical aspects of the decision of Technical Evaluation Committee. The allegation of discrimination is without force, which is an afterthought and ill-intentioned attempt to thwart procurement process.

10. It is evident from the documents provided that contract was awarded to the petitioners with respect to responsive items, which may have been accepted and acted upon by now, without objection. Reference is made to Award of contract letters dated 23.10.2020. So on the one hand the petitioners object to the determination of clinical efficacy/usefulness evaluation - with respect to items declared non-responsive - and on the other reaping benefits of the procurement process. Clinical efficacy/usefulness of the quoted drugs -declared responsive -was determined in terms of condition 87, if petitioners have not objected to said evaluation, how could same express reservations when same exercise was undertaken to declare certain items non-responsive. Nothing is placed on record, while submitting rejoinder that petitioner has declined to accept the award with respect to responsive drugs/medicines. The petitioner has participated with other bidders, accepting terms and conditions of bidding which in terms of Rule 31 of the Punjab procurement Rules, 2014 are formulated for prescribing evaluation criterion- and now no objection can be raised regarding condition 87 to the disadvantage/prejudice of other bidders, successful or otherwise. The judgments referred by learned counsel are distinguishable and none is applicable to the facts of the case.

11. I have examined the record and do not find any illegality, procedural defect, unfairness or any perverse act/conduct, to the prejudice of the petitioners. This tendency of initiating litigation after being unsuccessful upon the completion of competitive bidding process is deprecated and it is believed that procuring agencies shall take into consideration such undesirable conduct while evaluating bids by such entities in future.

1. In view of above, these petitions are without any merit and same are, therefore, dismissed.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 247

Present: Ch. Muhammad Iqbal, J.

MOHYUDDIN MOHAMMAD KHAN--Petitioners

versus

CHIEF SETTLEMENT COMMISSIONER/MEMBER (JUDICIAL-V), BOR PUNJAB etc.--Respondents.

W.P. No. 11-R of 2009, decided on 29.10.2020.

Constitution of Pakistan, 1973--

----Art. 199--Constitution petition--Allotment of land fraudulently on basis of fictitious fake claim--Upholding genuineness of allotment petition was filed on behalf of person (died) by his general attorney--Question of maintainability of petition--Request was made to bring on record legal heirs which was allowed without issuance of any notice--Validity--Legal heirs of deceased petitioner stand arrayed as petitioners in main writ petition, suffice it to say that said application was allowed without issuance of notice and affording hearing to adverse party and such acceptance of application does not extinguish right of opposing party to raise objection on impleading of legal heirs rather in said order, as legal term “subject to all just and legal exceptions “ is used with purpose to preserve right of opposing party who, if feels aggrieve of it may question legality of said order whereas unilateral acceptance of application does not mean merit decision of impleadment of LRs rather adverse party has right to secure its reversal at subsequent stage of proceedings--Further acceptance of application was subservient to “all just and legal exceptions” which neither cure legal defect in institution of lis nor gives any right successor in interest/ descendants of deceased to pursue petition filed on behalf of a dead person--Instant petition was filed on behalf of the Mohyuddin Muhammad Khan as a sole petitioner on the basis of whereas the institution of suit by/against only one dead petitioner/defendant as a whole is nullity in the eye of law and said lis is not further proceedable as the said flaw is incurable in nature--Instant petition (W.P. No. 11-R of 2009) which is filed on basis of defunct power of attorney on behalf of a dead sole petitioner is not maintainable.

[Pp. 253, 254 & 255] A, B, C & D

PLD 1982 SC 282, PLD 2011 SC 961, 2014 CLD 332, 2013 SCMR 464 and 2001 SCMR 1.

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

----S. 2--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Subsequent vendees--Allotment of land on basis of fictious fake claim--Challenge to--Petition was filed by defunct power of attorney on behalf of deceased person--Validity--Member (Judicial-I), Board of Revenue/Notified Officer maintained validity of alleged proposal/allotment in favour of Mohyuddin Muhammad Khan on 25.02.2006, whereafter he (the Member (Judicial-I), Board of Revenue) withdrew himself from proceedings of Inquiry Committee on 19.03.2007 and sent back matter to Chief Settlement Commissioner, which shows that order dated 25.02.2006 is an antedate order--Member (Judicial) whimsically and arbitrarily assumed jurisdiction beyond his mandate, as being member of inquiry committee, he had limited authority only to submit report to Chief Settlement Commissioner but what he did was beyond his vested jurisdiction at relevant point of time--Neither provision is available for allotment of evacuee land against unsatisfied pending units nor Notified Officer was conferred with any jurisdiction to allot or transfer land or grant alternate land after repealed evacuee laws in 1975, as such, order dated 25.02.2006 is without authority, illegal and void and passed in violation of order passed by Hon’ble Supreme Court of Pakistan--Furthermore, Member, Board of Revenue while dismissing petition of Mushtaq Ahmad etc. against petitioner wrongly presumed order passed by Settlement Commissioner as “original allotment order” whereas Settlement Commissioner, through order (the validity of which will be discussed in succeeding part of this judgment) only made proposals for certain Khasra Numbers in favour of Mohyuddin Muhammad Khan--It is established that petitioner/alleged allottee obtained alleged allotment/proposal on basis of fraud and it is settled law that fraud vitiates most solemn proceedings and any structure so raised on basis of such fraudulent transaction stood automatically dismantled and any benefit, right or title obtained by committing fraud wears no sanctity in eyes of law and ill-gotten gain cannot be perpetuated--Alleged allottee obtained allotment of land on basis of alleged order passed by Additional Settlement Commissioner (Lands), Lahore to extent of 1/4 share of his claim whereas he has not appended said order with instant petition nor produced before this Court--Appellate authority has a jurisdiction only to accept or annul order of lower authority/forum but in instant case neither description of claim nor impugned order was mentioned and no detail of any evacuee claim form number, date of filing of said claim, its verification and all other allied proceedings have been disclosed at any forum--Mohyuddin Muhammad Khan, fraudulently got verified claim in his name and on basis of said proposal, he secured allotment of land in different villages--Prima facie order is non-existent in official record and all subsequent proceedings have been conducted on basis of said non-existent order as such, it can conveniently be held that a visible fraud has been committed with ex-evacuee land--All subsequent events in respect of mutations/ alleged allotments in favour of Mohy-ud-Din, automatically dismantled his claims and if foundation is non-existent then all superstructures so constructed shall automatically collapse--When basic order is non-existent then all subsequent proceedings propounded thereof is devoid of any legal sanctity--Any allotment that has not been incorporated in revenue record before coming into force of Evacuee Property & Displaced Persons (Repeal) Act, 1975 or within one year of passing of allotment order, whichever is later, may be deemed to have been obtained fraudulently by anti-dating entries in register R.L.II and should be cancelled forthwith, after hearing objections, if any, of so-called allottee--Chief Settlement Commissioner rightly cancelled alleged allotments made in favour of Mohyuddin Muhammad Khan being based on fraud & forgery and resumed land in favour of State through impugned order which does not require any interference by this Court-- Chief Settlement Commissioner, after minutely perusing record and hearing parties, rightly passed impugned order which does not require any interference--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.

[Pp. 264, 265, 267, 268, 269, 270, 272 & 274] E, F, G, H, I, J, K, L, M & N

2007 SCMR 910, 2009 SCMR 1091, PLD 2015 SC 166, 1991 SCMR 377, 2001 SCMR 1822, PLD 2010 SC 993, 1993 SCMR 618 & PLD 2002 SC 677 ref.

Mr. Asad Ullah Khan, Advocate along-with Yaseen Muhammad Khan Aqeel, one of the legal heirs as well as Special Attorney of legal heirs of Petitioner.

Mr. Muhammad Shahzad Shaukat, Advocate for Petitioner (in W.P. No. 115-R/2010).

Mr. Ijaz Ahmad Khan, Advocate for Petitioners (in W.P. Nos. 125-R/2009, 126-R/2010, 127-R/2010, 128-R/2010, 129-R/2010, 130-R/2010, 131-R/2010, 132-R/2010 and W.P. No. 87-R/2013).

Mr. Hamid Ali Mirza, Advocate for Petitioner (in W.P. No. 121-R/2010).

Ch. Bashir Hussain Khalid, Advocate for Petitioners (in W.P. No. 2-R/2009).

Malik Noor Muhammad Awan & Arshad Malik Awan, Advocates for Petitioners (in W.P. No. 66-R/2011).

Kh. Tahir Ahmad, Advocate for Petitioner (in W.P. No. 35-R/2013).

Mr. Iqbal Ahmad Khan, Advocate for Petitioner (in Writ Petition No. 150-R/2009).

Mr. Mushtaq Ahmad Chaudhary, Advocate for Respondent No. 6 (i) (in W.P. No. 11-R of 2009).

Rao Farooq Akhtar, Advocate for Applicant in application under Order 1 Rule 10 of CPC (in W.P. No. 11-R of 2009).

Mr. Osama Hanif, Advocate/Legal Advisor on behalf of Settlement Department (in W.P. No. 150-R of 2009).

Mian Swad Hanif, Advocate/Legal Advisor on behalf of S&R (BOR)/Settlement Department, Punjab, Lahore.

Mr. Waseem Iqbal Butt, Assistant Advocate Punjab.

Dates of hearing: 21.9.2020, 23.9.2020 and 25.9.2020.

Judgment

Through this single judgment, I intend to decide the above titled writ petition along with connected Writ Petition Nos. 2-R/2009, 125-R/2009, 150-R/2009, 115-R/2010, 121-R/2010, 126-R/2010, 127-R/2010, 128-R/2010, 129-R/2010, 130-R/2010, 131-R/2010, 132-R/2010, 35-R/2013, 66-R/2011 & No. 87-R/2013 as common questions of law and facts are involved in all these writ petitions.

1. Through these writ petitions, the petitioners have challenged the vires of order dated 10.01.2009 passed by the Member (Judicial-V)/Chief Settlement Commissioner, Board of Revenue, Punjab who declared alleged allotment in urban area in the name of petitioner Mohyudin Muhammad Khan situated at villages Kohar Adjudhiapur, Gohawa, Keer Khurd and Bhekewal, Lahore as bogus, antedated and fabricated which was obtained against bogus urban claim and the said land was resumed in favour of the state.

2. Brief facts of the case, as mentioned in the Writ Petition No. 11-R/2009, are that Mohyuddin Muhammad Khan son of Yousaf Muhammad Khan (petitioner) allegedly got verified claim in his name on the basis of which he secured allotment of land measuring 256-Kanals & 11-Marlas in Khata No. 364 of Village Ajudhiapur, as well as in villages Gohawa, Kohar, Keer Khurd and Bekhewal etc., in urban area of Tehsil & District Lahore. Respondent Ghulam Rasool file Mukhbari application on 19.06.1972 against the above allotment contending that the allottee has obtained the above said allotment fraudulently on the basis of fictitious/fake claim. During pendency of the said application, petitioner Mohyuddin Muhammad Khan filed Writ Petition No. 162-R/1973 which was disposed of vide order dated 21.12.1973 with the direction to the Settlement Commissioner to decide the application on merits. Another Writ Petition No. 1362-R/1976 was filed but the same was dismissed as withdrawn. In compliance of order passed by this Court, the Chief Settlement Commissioner/Notified Officer dismissed the Mukhbari application vide order dated 11.08.1977. Against the dismissal of Mukhbari Application, respondents Ghulam Rasool etc. filed Writ Petition No. 1387-R/1977 which was dismissed by this Court. The above dismissal order passed by the learned Single Bench was assailed ICA No. 118 of 1977 which was also dismissed. Against these dismissal orders, respondents Ghulam Rasool etc. filed Civil Appeal No. 134/1984 which was allowed by the Hon’ble Supreme Court of Pakistan vide judgment dated 25.05.1991 and case was remanded to the Chief Settlement Commissioner, Punjab for fresh decision. In post remand proceedings, the Chief Settlement Commissioner sent reference to the Board of Revenue, Sindh at Karachi, for the verification of evacuee claim of Mohyud Din Muhammad Khan. In reply to that reference, a report dated 25.05.1992 was sent by the secretary (S&R), Board of Revenue, Sindh at Karachi to the Chief Settlement Commissioner, Punjab. Being dis-satisfied with above report, respondents Ghulam Rasool etc., (informers/Mukhbars) requested for summoning of original record of the case. During pendency of the case before the Chief Settlement Commissioner Ghulam Rasool etc., (informers) filed Writ Petition Nos.211-R & 22-R of 1994 which were disposed of by this Court vide order dated 14.12.2004. Thereafter, the Chief Settlement Commissioner on 26.08.2005 constituted an Inquiry Committee comprising Member (Judicial-I)/Notified Officer and Secretary (S&R), Board of Revenue to conduct a thorough examination of the record and submit report within one month. The said inquiry was pending when one member of committee (Member (Judicial-I), Board of Revenue), decided the main case by upholding the genuineness of allotment in favour of the petitioner vide order dated 25.02.2006. The Senior Member, Board of Revenue informed the Chief Settlement Commissioner with regard to the above illegality, who (CSC) after hearing the parties declared the alleged allotments in favour of Mohyuddin Muhammad Khan, as bogus vide order dated 10.01.2009 and resumed the land in favour of the state. Hence, these writ petitions.

3. I have heard the arguments advanced by the learned counsels for all the parties in detail and gone through the record with their able assistance.

4. At the very outset respondent raised objection with regard to the maintainability of this petition as the same is filed on behalf of a dead person. Perusal of the record shows that the instant Writ Petition No. 1l-R/2009 was filed on 26.01.2009 on behalf of Mohyuddin Muhammad Khan by his general attorney namely Ch. Hakim Ali son of Bagh Ali through Muhammad Shahzad Shaukat, Advocate but as per record appended with the petition, the said petitioner Mohyuddin Muhammad Khan had died on 08.09.2006. Scanned copy of his death certificate is as under:

Moreover Mr. Muhammad Shahzad Shaukat, Advocate filed an application (C.M. No. 1/2010) on 30.04.2010 in instant Writ Petition No. 1l-R/2009 with the contention that petitioner Mohyuddin Muhammad Khan has died on 08.09.2006 and a request was made to bring on record his legal heirs, which application without issuance of any notice to the other side was allowed vide order dated 13.05.2010, which is as under:

“C.M. No. 1 of 2010.

This is an application for bringing on record L.Rs. of the petitioner.

1. Application is allowed subject to all just and legal exceptions.

C.M. No. 2 of 2010.

1. Allowed subject to all just and legal exceptions.”

The legal heirs of the deceased petitioner stand arrayed as petitioners in the main writ petition, suffice it to say that the said application was allowed without issuance of notice and affording hearing to the adverse party and such acceptance of application does not extinguish the right of opposing party to raise objection on the impleading of the legal heirs rather in the said order, as legal term “subject to all just and legal exceptions “ is used with purpose to preserve the right of opposing party who, if feels aggrieved of it may question the legality of said order whereas the unilateral acceptance of the application does not mean the merit decision of the impleadment of LRs rather the adverse party has the right to secure its reversal at subsequent stage of the proceedings. Reliance is placed on the cases titled as Ghulam Muhammad & Another vs. Irshad Ahmed & Another (PLP 1982 SC 282) Ch. Muhammad Ilyas Gujjar vs. Chief Election Commissioner of Pakistan & others (PLD 2011 SC 961), Qaid Jauhar & another vs. Mst. Hajiani Hajra Bai & Another (2002 CLC 551) and Lakhra Power Generation Company Limited (LPGCL) vs. Karadeniz Powership Kaya Bey through Master of the Vessel & 4 others (2014 CLD 337). Further the acceptance of the application was subservient to “all just and legal exceptions” which neither cure the legal defect in the institution of the lis nor gives any right the successor in interest/descendants of the deceased to pursue the petition filed on behalf of a dead person. Admittedly the writ petitioner died in 08.09.2006 whereas the instant petition was filed in the year 2009 but till to-date the legal heirs have not independently challenged the impugned order of the Chief Settlement Commissioner dated’ 10.01.2009 before any competent forum which has attained finality against the alleged allottees as well as his legal heirs.

7. Furthermore Yasin Muhammad Khan Aqeel one of the legal heirs as well as attorney of the other legal heirs of the deceased petitioner unambiguously made a statement before this Court that they have never ever appointed Mr. Muhammad Shahzad Shaukat Advocate in this case as their counsel whereas perusal of the record of this writ petition as well as application (C.M. No. 1 of 2010) for impleadment of L.Rs. of the deceased petitioner show that the petitions were drafted, instituted and preliminary arguments were made by the above named learned counsel and the disowning the appointment of the said counsel at this stage dismantles the edifice of instant petition. Besides above after death of Mohyuddin Muhammad Khan (on 08.09.2006), the document of power of attorney executed in favour of Ch. Hakim Ali stand automatically abated whereafter no lis could be instituted by the said attorney on behalf of his principal. Reliance is placed on Talib Hussain & others vs. Member, Board of Revenue & others (2003 SCMR 549). Admittedly the instant petition was filed on behalf of the Mohyuddin Muhammad Khan as a sole petitioner on the basis of defunct power of attorney whereas the institution of suit by/against only one dead petitioner/defendant as a whole is nullity in the eye of law and said lis is not further proceedable as the said flaw is incurable in nature. Reliance is placed on the cases titled as Hafiz Brothers (Pvt.) Ltd. & others vs. Messrs Pakistan Industrial Credit and Investment Corporation Ltd. (2001 SCMR 1), Muhammad Yar (deceased) through LRs & others vs. Muhammad Amin (deceased) through LRs & others (2013 SCMR 464), Farzand Ali & Another vs. Khuda Bakhsh & others (PLD 2015 SC 187). Reliance is also placed on a case cited as Ch. Muhammad Tufail Khan alias Tufaul Muhammad through Legal Representatives vs. Zari Taraqiati Bank Limited through Branch Manager (PLD 2007 Lahore 180) (D.B),’ wherein learned Division Bench of this Court held as under:

“In answer to the first part of the question, it may be held that according to the settled law, any suit or the legal proceedings, instituted against a dead person are nullity in law and in this behalf, we are fortified by the judgment of the Honourable Supreme Court, reported as Hafiz Brothers (Pvt.) Ltd. and others v. Messrs Pakistan Industrial Credit and Investment Corporation Ltd. 2001 SCMR 1, which declares as follows:

“There is no cavil with the proposition that the institution of legal proceedings against dead person is of no avail to the concerned litigant. The learned High Court rightly came to the conclusion that the suit of PICIC against deceased Mst. Inayat Begum was incompetent and, therefore, nullity in law.”

As such it is observed that the instant petition (W.P. No. 11-R of 2009) which is filed on the basis of defunct power of attorney on behalf of a dead sole petitioner is not maintainable.

1. Now adverting to the case of the subsequent vendees from Mohyuddin Muhammad Khan who are petitioners in the other Writ Petition Nos. 2-R/2009, 125-Rof 2009, 150-R/2009, 115-R/2010, 121-R/2010, 126-R/2010, 127-R/2010, 128-R/2010, 129-R/2010, 130-R/2010, 131-R/2010, 132-R/2010, 35-R/2013, 66-R/2013 & No. 87-R/2013 who have challenged the vires of the impugned order of the Chief Settlement Commissioner dated 01.01.2009. It is appropriate to examine in detail the entitlement of alleged allottee as well as the legality of the allotment in favour of Mohyuddin Muhammad Khan before marching towards the rights of the subsequent purchaser.

2. The predecessor in interest of the writ petitioner Mohyuddin, Muhammad Khan was allotted ex-evacuee land as expounded in para 12 of this judgment. Against the said alleged allotments, the respondents Ghulam Rasool etc. filed applications before the Settlement Authorities which were dismissed. Thereafter the writ petition as well as Intra Court Appeal of the respondents Ghulam Rasool etc. were also dismissed. The respondents assailed these orders before the Hon’ble Supreme Court of Pakistan through Civil Appeal No. 134/1984 which was allowed vide judgment dated 25.05.1991 and the matter was remanded to the Chief Settlement Commissioner to enquire into the matter and decide the same in accordance with law, and held as under:

“7. As the allegations made by the applicant in the Mukhbari application have not yet been properly inquired into, we set aside the judgments of the High Court as well as the order of the Settlement Commissioner and remand the matter to the Board of Revenue for proper inquiry. The Board will no doubt call for the relevant record from Karachi and also examine Mr. Zaka Ullah Naik before recording its finding on Mukhbari application. The appellants shall also have costs of these appeals.”

The matter remained pending before the Settlement Authorities and thereafter Chief Settlement Commissioner, in compliance of the aforesaid judgment of the August Court, vide order dated 26.08.2005, constituted an Inquiry Committee comprising Member (Judicial-I)/Notified Officer and Secretary (S&R) who shall thoroughly examine the record and submit its report. For ready reference, order dated 26.08.2005, passed by the Chief Settlement Commissioner, is reproduced as under:

05۔8۔26 حاضری: مشتاق احمد یکے از سائلان ہمراہ اختصار احمد کونسل سائلان

رانا محمد حنیف ایڈووکیٹ محکمہ بحالیات۔

ملک غلام فرید سنوترہ کونسل فریق دوئم

بحث شماعت ہوئی۔ ریکارڈ ملا حظہ ہوا۔

معاملہ عدالت عظمیٰ سے ریمانڈ شدہ ہے۔ تاہم ممبر جوڈیشل I-/نوٹیفائیڈ آفیسر و سیکرٹری (ایس اینڈ آر) پر مشتمل کمیٹی تشکیل دی جاتی ہے کہ معاملہ کا بغور جائزہ لے کر اور فریقین کو سماعت کرکے ایک ماہ کے اندر اندر رپورٹ پیش کریں۔ مزید فریقین کی جو درخواستیں عارضی ریلیف کیلئے فیصلہ طلب ہیں ان کا جائزہ لے کر سفارشات پیش کریں فریقین کو ہدایت ہوئی کہ وہ 30.8.05 کو کمیٹی کے رو برو پیش ہوں۔

In compliance of the judgment dated 25.05.1991 passed by the Hon’ble Supreme Court of Pakistan, the Chief Settlement Commissioner also recorded statement of Zaka Ullah Naik on 14.12.1992, which is reproduced as under:-

بیان ذکا اللہ نائیک سابقہ ایڈیشنل کمشنر ریونیو/سٹیلمنٹ کمشنر لاہور ڈویژن حال 70 افغانی روڈ سمن آباد لاہور، بااقرار صالع۔ یہ درست ہے کہ میں 1972 میں لاہور بطور ایڈیشنل کمشنر ریونیو/سٹیلمنٹ کمشنر تعینات تھا۔ یہ درست کہ چٹھی نمبری 5.2.72 dt. 322 بابت اپیل نمبر 1972/14 محی الدین محمد خان بنام ایڈیشنل سٹیلمنٹ کمشنر جو میری عدالت میں زیر التواعہ تھی میں نے خواجہ محمود صادق سٹیلمنٹ کمشنر ایڈیشنل پنجاب 11 ایوان روڈ کو تحریر کی تھی جس کا جواب بذریعہ چٹھی نمبر CRo 161 مورخہ1972۔ 2۔7 خواجہ محمود صادق نے جوابا ارسال کیا تھا۔ چٹھی 322 پر میرے دستخط ہیں۔ ریکارڈ سے ظاہر ہے کہ چٹھی نمبر 7.2.72 پر دستخظ موجود ہیں۔ ہر دو چٹھیاں ریکارڈ پر اصل موجود ہیں۔ بابت کلیم محی الدین محمد خان۔ عکسی نقل حکم مورخہ 8.2.72 بابت اپیل نمبر 1972/14 آخری حصہ پر میرے دستخظ ہیں۔ یہ اسی طرح کے ہیں جیسے میں کرتا ہوں۔ اپیل نمبر 1972/72 تاج دین وغیرہ بنام محی الدین کی عکسی نقل مورخہ 29.5.72 پر بھی ویسے ہیں۔ درخواست اخراج حکم امتناعی پر دستخط مورخہ 16.5.72 اور مختصر دستخط مورخہ 11.5.72 پر ویسے ہی ہیں جسے میں کرتا تھا اور کرتا ہوں۔

اپیل نمبر 1972/7 فیصلہ مورخہ 3.2.72 کی عکسی نقل کا ملا حظہ کیا ہے۔ (حسین بنام بحالیات) اس پر بھی ویسے ہی دستخط ہیں جسے میں کرتا ہوں۔ اپیل نمبر 72/14 بعنوان محی الدین محمد خان بنام ایڈیشنل سیٹلمنٹ کمشنر 1972/72 بنام تاج دین، محی الدین محمد خان پر دستخظ ہیں مگر یہ نہیں کہہ سکتا ہوں کہ دستخظ میرے ہیں۔ البتہ جیسا کہ پہلے بیان کیا ہے یہ ویسے ہی ہیں جسے میں کرتا تھا اور کرتا ہوں۔

گواہ کی شہادت قابل قبول ہونے کے متعلق بعد از سماعت بحث فیصلہ کیا جائیگا کہ جو دستاویزات پیش ہوئے ہیں اور جن پر دستخط ہونے بیان کئے ہیں وہ قابل شہادت بمطابق قانون ہیں یا کہ نہیں۔

سنکر درست تسلیم کیا۔

(emphasis supplied)

Zaka Ullah Naik, in his statement reproduced above, did not acknowledge his signatures on appeal No. 14/1972, 72/1972. The said statement of Zaka Ullah Naik was never challenged by the alleged allottee, Mohyuddin Muhammad Khan, before any forum.

1. The Chief Settlement Commissioner/Member, Board of Revenue sent reference to the Board of Revenue, Sindh at Karachi in respect of verification of the claim of alleged allottee Mohy-ud-Din Muhammad Khan and vide letter dated 25.05.1992, the Secretary S&R sent reply which is as under:

“That the claim record relating to claim Reg. Nos.4538/lV and 6532/IV were checked and it was found that claim Reg. Nos.4538/IV was registered in the name of Mohyudin Muhammad Khan son of Yousaf Muhammad Khan and with the help of copies of Verification Order, the Register of Verified claims was checked and said claim was found to have been verified by Mr. Iqil Muhammad Jaffri, Deputy Claims Commissioner, Karachi, on 24.04.1995. It was further mentioned that the file of other claim bearing Reg. No. 4538/IV in the name of Rashid Ahmad Ansari was available in the record but it was not found entered in the Register of Claims. The copies of the relevant entries of Register of Claims and Register of Verified Claims were also furnished showing that the claim of Mohyudin Muhammad Khan was found entered and verified in the said Registers. Similarly Mr. Zakaullah Naik, Ex-Settlement Commissioner (Land), Lahore, was also summoned and his statement was recorded on 14.12,1992 in which he clearly confirmed that the orders dated 29.05.1972 passed in the appeal of Ghulam Rasool etc. had actually been passed by him and he owned the order signed by him who had decided the appeal of the informers Ghulam Rasool etc. was also summoned and his statement was recorded on 14.12.1992 in which he clearly confirmed that the orders dated 29.05.1972 passed in the appeal of Ghulam Rasool etc. had actually been passed by him and he owned the order signed by him. It is to be mentioned here that Ghulam Rasool etc. had denied to have filed the said appeal and it was contended that the said appeal file had fraudulently been prepared and was bogus one.”

(emphasis supplied)

In the above quoted text from the reply of Secretary S&R, Sindh it is evident that the claim Register No. 4538/IV is available in the name of one Rashid Ahmad Ansari but under the grab of said claim Mohyuddin Muhammad Khan fraudulently got allotted ex-evacuee land in Lahore City on the basis of fraud and misrepresentation. Whereas there is no any claim in urban area situated in villages Kohar, Adjudhiapur, Gohawa, Keer Khurd and Bhekewal as per available record. The Chief Settlement Commissioner, Punjab deputed Sh. Ghulam Rasool, Naib Tehsildar for checking of original claim file in respect of alleged allottee Mohyuddin Muhammad Khan who submitted report as under:

“I told the Deputy Settlement Commissioner, Karachi, that Mohyudin Muhammad Khan has obtained land against the verification orders passed in claim case Reg. No. 4538/IV Karachi. The said claim case is available in the Record Room. It is observed that one Rashid Ahmed Ansari s/o Late Qasim Ali Sahib of Saharanpur, India, filed this claim on claim form bearing Machine No. 269580 for a sum of Rs. 42,000/under Schedule II and Rs. 9260/under Schedule V which was registered at No. 4538/IV. Subsequently, the name of Khurshid Ahmed Ansari was also added as a co-claimant by the then Claims Officer. The claim was finally verified by Mr. M.A.Rauf, Deputy Claim Commissioner, in appeal No. 451/V vide his order dated 23.07.1960 for a sum of Rs. 14596/under Schedule I and Rs. 3877/8/under Schedule VI specifying the shares of the two claimants Rashid Ahmed Ansari and Khurshid Ahmed at Rs. 9600/and Rs. 4996 under Schedule I and Rs. 2640/and Rs. 1237/8/ under Schedule VI respectively. Mr. Rashid Ahmed Ansari has also been paid cash compensation to the extent of Rs. 2489/only, against his C.P.II application No. 4032 by cheque No. 5002408 vide cheque slip No. 730/B K-LI.”

The Deputy Settlement Commissioner, (Claims and Records) Karachi after obtaining the aforesaid report of Sh. Ghulam Rasool, passed order in respect of bogus allotment of urban evacuee lands bearing Claims 81-68 dated 09.08.1981. Further the Secretary (RS&EP), Board of Revenue, Sindh at Karachi wrote a letter dated 25th May, 1992 to the Secretary (Settlement & Rehabilitation), Board of Revenue, Punjab which is as under:

GOVERNMENT OF SINDH BOARD OF REVENUE (RS. & EP BRANCH)

79-Pak. Secretariat, Karachi.

SECY (RS&EP)/BOR/92-158

To

The Secretary (Settlement and Rehabilitation), Board of Revenue, Punjab, Farid Kot House, Lahore.

Subject: i) CIVIL APPEAL NO. 134/84 AND 135/84 GHULAM RASOOL VS. SETTLEMENT COMMISSIONER (LAND) ETC.

ii) BOGUS ALLOTMENT OF URBAN EVACUEE LAND ETC. IN THE NAME OF (1) MST. DHAPI (2) HUSSAIN S/O SUMAR

(3) MUHYUDDIN MOHAMMAD KHAN S/O MOHAMMAD YUSUF.

Please refer to your Memo No. 1265 and 3181 dated 21.4.1992 and 17.5.1992, on the subject noted above received through Mr. Abdul Qadir, Assistant of your office.

1. The Claims record relating to the Claim Registration No. 4538/IV and 6523/IV have been checked with the following results.

2. Claim Registration No. 4538/IV is registered in the name of Mohyuddin Mohammad Khan S/o Yusuf Mohammad Khan in the Registration Register of Claims (photo copy of the Register enclosed.

3. The original claim file Reg. No. 4538/IV has not been consigned to Record Room. However with the help of Photostat copy of verification order supplied by you, the Register of verified claims was checked and it was found that the said claim was verified by Mr. Aqil Mohammad Jaffary, Deputy Claims Commissioner, Karachi on 24.4.1959 as under:-

Under Schedule-I Rs. 96,000/-

Under Schedule-II Rs. 35,000/-

Under Schedule-IV 172 Acres.

Under Schedule-V 450.36 Acres.

(Photo-stat copy of the Register of verified claim enclosed).

1. The file of other claim bearing Reg.No. 4538/IV in the name of Rashid Ahmad Ansari S/o Qasim Ali is available in the Record Room. but it has not been found entered in the Register of Claims.

2. A detailed report has already been sent to you vide this office letter No. 68 dated 9.8.1981 (copy enclosed).

3. Original Claim file of Rashid Ahmad Ansari is sent herewith (6 + 49---Sheets). Claim Reg.No. 6523/IV of Hussain S/o Sumar. A detailed report in this respect has already been sent to you vide this office No. 68 dated 9.8.1981 (copy enclosed). Photo stat copy of Register of Claims and Register of Verified Claims are enclosed herewith.”

Ends: As above. (GUL HASSAN CHANNA) Secretary (RS&EP) Board of Revenue Sindh, Karachi.

The alleged allottee/petitioner (Mohy-ud-Din) also got allotment in different villages of Districts Muzaffargarh and Layyah on the basis of fraud and the Deputy Commissioner, Muzaffargarh after examining the record and inquiry, declared that the claim of petitioner Mohyuddin Muhammad Khan, alleged allottee, regarding rural land, is bogus who vide order dated 07.09.1995, cancelled the same. The Deputy Commissioner, Muzaffargarh also sent the case to the Deputy Director, FIA, Multan vide letter dated 07.09.1995 against the petitioner/ alleged allottee, Mohyuddin Muhammad Khan, for the obtaining fraudulent allotment in Muzaffargarh and 43 other chaks/villages. For ready reference, aforesaid letter is reproduced as under:

From

The Deputy Commissioner, Muzaffargarh.

To

The Deputy Director (F.I.A), Multan Region, Multan.

No. 113/HC(S) 7-9-1995.

Subject: Fraudulent Transfer of Central Government Land in favour of Mohiyuddin Mohammad Khan.

Memorandum.

Mohiyuddin Mohammad Khan s/o Yousaf Mohammad Khan r/o 23 Haiderabad Colony, Karachi was allegedly allotted 17384 units by the Central Record Office, Lahore [flag-A]. This claim was received by this office vide letter no.7/SC dated 01.03.1972 from the Additional Deputy Commissioner/ Additional Settlement Commissioner, Sheikhupura [flag-B]. Consequently, Mohiyuddin was allotted land in 43 villages of Muzaffargarh district from the period between 1972 and 1980 through Abdul Waheed {Mukhtar-e-Aam} and Niaz Ahmad Sheikh {Mukhtar-e-Khas}. On 8.1.1994, Mohiyuddin submitted an application [flag-C] through Niaz Ahmad requesting for confirmation of land in his favour in village Mondka. The enquiry conducted in pursuance revealed the following facts:

a) Niaz Ahmad Sheikh had submitted an application on 21.2.80 [flag-D] for amendment in Naqsha Unit in 3 villages in which the Claim No. was not mentioned nor did the competent officer i.e. A.D.C[G] had passed any orders. Nevertheless. R-L II of these 13 muazas were called on 4.3.80 and the land was confirmed in favour of Mohiyuddin on the R.L-II’s. This was done without changing the Naqsha Unit, which was a pre-requisite. It was recorded on the order sheet that “the file was presented today. In compliance of the orders in the mukhbari case dated 16.7.75, requisite entries have been made in the R.L II Registers”.

b) The details of the Mukhbari case are that an application dated 15.2.74 was submitted by Masooda Khanum and Mohiyuddin through Riaz Anwar [Mukhtar-eAm] and Abdul Waheed [Mukhtar-e-Am] respectively [through the mukhtarnama of Abdul Waheed was registered in 1977] to the Deputy Commissioner, Muzaffargarh [Flag-E). It was stated in the application that their balance claim units were pending in district Multan and Muzaffargarh.

c) The application was decided in favour of the petitioners by the Additional Deputy Commissioner [Consolidation] vide his orders dated 16.7.75 [Flag-E] whereby land in 26 muazas was confirmed. Interestingly, allotment was decreed only in favour of Mohiyuddin and Masooda Khanum was ignored without assigning any reason.

d) Quite apparently, the application dated 21.2.80 was processed in haste and without independently confirming the authenticity of the claim, favourable entries were ordered to be made in the Register R.L IIs, 2. After the enquiry report [Flag-F] on the application dated 08.01.1994 was received, the parties were called and after hearing them out, it was decided to confirm the authenticity of the claim from the office of A.D.C[G] Sheikhupura. It was confirmed to us by that office,vide letter no.4949/HC[S] dated 30.08.1995 [Flag-G] that Letter No. SC/7 dated 1.3.1972 was never issued by that office. It was further clarified that on this date, only letter no. 185 was issued to A.D.C[C], Lahore.

1. It is quite apparent that Mohiyuddin and his cohorts namely Niaz Ahmad and Abdul Waheed have perpetrated a fraud on the government and have fraudulently managed to get central government land in the following 43 muazas transferred in their favour through bogus allotment papers:

1. Maqsoodpur 2. Nohanwali 3.Bali Shumali

4. Khudai 5. Chak Aalidah 6. Gajjuwahin

7. Daulatpur 8. Basti Sabdila 9. Mondka

10. Mahra Faraz 11. Kari Ali Mardan 12.Bait Metla

13. TibbaBhattian 14. EasanMahar 15. Hajipur

16. Shahpur 17. Chabutra Kamal 18.Chabutra Adha

19. Fattu Fanaka 20. Mahboobwala 21. Mahra Nasheb

22. Mubarakpur 23. Umarpur 24. Bai Ria Ali

25. Bai Mathal Shah 26. Chattwain 27. Bait Zani

1. Rakh Kotla Gammu 29.Thal Jhandi 30. Mohan [Layyah]

31. Mahra Gharbi 32. Choubara [Layyah] 33. Mohammadpur

34. Basti Jhangar 35. Umarpur Janubi 36. Bait Jhook

1. Bali Janubi 38. Rakh Khokarwala [Layyah] 39. Gujrat

40. Palya Kalroo 41. Meharpur 42. Kunjhar Khas

43. Ayyab Arain

The participation, active or docile, of government officials is also not ruled out, in carrying out this fraud. On the face of it, the following are deemed culpable:

1. Mohiyuddin s/o Mohammad Yousaf Khan r/o 23 Haidarabad Colony, Karachi.

2. Abdul Waheed Khan r/o Muzaffargarh.

3. Sheikh Niaz Ahmad s/o Nannu r/o Muzaffargarh.

4. Yar Mohammad, ex-Settlement Clerk, D.C Office Muzaffargarh.

5. Abdul Hameed s/o Haji Mohammad Saeed, ex-Ahlmad Settlement, D.C Office, Muzaffargarh.

6. Mohammad Nawaz, ex-Head Clerk Settlement, D.C. Office, Muzaffargarh.

7. Pehlwan Baksh, ex-Kanungo Settlement, D.C Office, Muzaffargarh.

8. It is requested that the matter may be investigated and cases registered against private persons/government officials found responsible under the relevant law. It may be noted that we have unconfirmed information that Mohiyuddin has also managed similar allotments in district Kasur and perhaps other districts of the Punjab.

Deputy Commissioner, Muzaffargarh.

No. 114 to 117/HC[S] Dated 7.9.1995.

A copy is forwarded to the Deputy Commissioner[Layyah], Assistant Commissioners of Muzaffargarh, Kot Addu and Alipur for information and immediate necessary action for cancellation of the allotments made in favour of Mohiyuddin in their area of jurisdiction and for resumption of the land in favour of the state, on which a report may be sent to this office within 15 days positively.

Deputy Commissioner, Muzaffargarh.

The Member (J-I)/ Notified Officer, Board of Revenue, Punjab (one of the members of the committee) vide order dated 19.03.2007 sent back the cases to the Chief Settlement Commissioner for reconstituting enquiry Committee. For ready reference, aforesaid order is reproduced as under:-

Case No. 611 of 2005.

Ghulam Rasool through legal heirs Mushtaq Ahmad

Versus

The State/Mohyuddin Mohammad Khan

Case No. 611-A of 2005.

Ghulam Rasool through legal heirs Mushtaq Ahmad

Versus

Hussain Sumar etc.

Present: Mr. Mushtaq Ahmad one of the legal heirs of the petitioners.

ORDER:

The above title cases are pending in this Court under the order of the Chief Settlement Commissioner dated 26.8.2005 whereby he constituted an enquiry Committee consisting of Member (Judicial-I)/Notified Officer and Secretary (S & R) and to submit recommendations on this account.

1. It is pertinent to point that Member (J-I)/Notified Officer for Lahore and Faisalabad), is working in the judicial capacity and he is not supposed to indulge in executive matters. Under the above circumstances, the cases are sent back to the Honourable Chief Settlement Commissioner, Punjab, for reconstituting enquiry Committee on the executive side, Parties are directed to appear before the Chief Settlement Commissioner, Punjab, on 6.4.2007.

Announced

19.3.2007

MEMBER (J-I) NOTIFIED OFFICER BOARD OF REVENUE, PUNJAB.

The proceedings in respect of inquiry were pending before the said Committee and on one fine morning, the Member (Judicial-I), Board of Revenue/Notified Officer maintained the validity of alleged proposal/allotment in favour of Mohyuddin Muhammad Khan on 25.02.2006, whereafter he (the Member (Judicial-I), Board of Revenue) withdrew himself from proceedings of Inquiry Committee on 19.03.2007 and sent back the matter to the Chief Settlement Commissioner, which shows that the order dated 25.02.2006 is an antedate order. The Member (Judicial) whimsically and arbitrarily assumed the jurisdiction beyond his mandate, as being member of the inquiry committee, he had limited authority only to submit report to the Chief Settlement Commissioner but what he did was beyond his vested jurisdiction at the relevant point of time.

1. Moreover with the promulgation of The Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 all the settlements laws stood repealed retrospectively w.e.f 01.07.1974. Under Section 2 of the Act ibid a limited jurisdiction was available with the Notified Officer to decide only the “pending proceedings” as well as the matter remanded by the Hon’ble Supreme Court or by High Court. According to the above enactment neither any provision is available for allotment of evacuee land against unsatisfied pending units nor Notified Officer was conferred with any jurisdiction to allot or transfer land or grant alternate land after repealed evacuee laws in 1975, as such, the order dated 25.02.2006 is without authority, illegal and void and passed in violation of the order passed by the Hon’ble Supreme Court of Pakistan. Furthermore, the Member, Board of Revenue while dismissing the petition of Mushtaq Ahmad etc. against the petitioner wrongly presumed the order dated 08.02.1972, passed by the Settlement Commissioner as the “original allotment order” whereas the Settlement Commissioner, through order dated 08.02.1972 (the validity of which will be discussed in succeeding part of this judgment) only made proposals for certain Khasra Numbers in favour of the Mohyuddin Muhammad Khan. With regard to the jurisdiction of the Notified Officer after repeal of evacuee laws in 1975, the Hon’ble Supreme Court of Pakistan in the case titled Member Board of Revenue/Chief Settlement Commissioner, Punjab. Lahore vs. Abdul Majeed & Another (PLD 2015 SC 166) has conclusively held that the Chief Settlement Commissioner/Notified Officer is not competent to make any fresh or alternate allotment of land against unsatisfied pending units to any person in lieu of any belated claim. Relevant portion of said judgment is reproduced as under:

“15. The Repealing Act, 1975 does not vest the Notified Officer with any authority to make a fresh allotment of available (evacuee) land. This disability includes the power to allot alternate land. The said limitations on the powers of the notified Officer are discussed in Saifullah v. Board of Revenue (1991 SCMR 1255). In Muhammad Ramzan v. Member (Rev.)/CS (1997 SCMR 1635), as follows:

“(8) With the repeal of the Evacuee Laws in 1975, the unallotted agricultural land vested in the Provincial Government against price paid for it. Thereafter, its disposal had to take place according to the Scheme to be framed by the Provincial Government. The Scheme framed by the Provincial Government made no provision for allotments to be made against the pending verified produce index units. For this reason the allotment made after 1975 in favour of the persons from whom the appellant was claiming was wholly without jurisdiction and lacking in authority. Notwithstanding that it was made on the direction of the Board of Revenue, it could not be recognized in law nor could it be allowed to stand on record. It was void ab initio. Consequently, its removal even by an illegal order would not suffer from any infirmity but would rather re-establish the legal and the correct status of the property. On this view of the matter the decree of the Civil Court could also not remain intact.”

Reliance in this regard is placed on Bashir Ahmad and others vs. Punjab University Academic Staff Association and others (1991 SCMR 377), wherein the Hon’ble Supreme Court of Pakistan has held as under:

“The order dated 25.03.1974 passed in favour of the predecessor-in-interest of the petitioners was challenged through Writ Petition No. 402-R of 1976 by the Punjab University Academic Staff Association and the University of the Punjab whereby the informants were allotted the land becoming available by the setting aside of the allotments to Badar-ul-Hassan and Qureshi Mahmud Ahmad on 10.4.1974 as the land had in the meanwhile been sold to the University Authorities on 29.3.1974 under Section 10(2) of the Displaced Persons (Land Settlement) Act, 1958. It was alleged that the Additional Settlement Commissioner (Respondent No. 2) was incompetent in law to make the allotment to the informants as the land in question had been declared as a building site by the Notification, dated 16th May, 1973. This writ petition was allowed by the impugned judgment of the High Court dated 6.4.1988. Hence this petition for leave.

Mr. Shahzad Jehangir has been heard on behalf of the petitioners, who has submitted that the decision of the High Court is wrong. But we are of the opinion that the High Court was right in holding that in the face of the Notification dated 16.5.1973 declaring the urban lands within the Municipal limits etc. as ‘building sites’ no allotment of such lands on the basis of the claimants units, whether urban or rural, could be made.”

Reliance is also placed on the case titled as Mirza Zafar Ali & others vs. Lahore Cantonment Cooperative Housing Society Limited (2005 SCMR 985). In another case titled as Member, Board of Revenue, Punjab. Lahore vs. Rafaqat Ali (1998 SCMR 2596) the Hon’ble Supreme Court has held that the Act XIV of 1975 became effective from the 1st day of July 1974, therefore, the status of evacuee property as exist on such date could not be changed after promulgation of said enactment and the Chief Settlement Commissioner was denuded of any authority to make any allotment against unsatisfied pending units. Reliance is also placed on the cases titled as Muhammad Ramzan & others vs. Member (Revenue) Chief Settlement Commissioner & others (1997 SCMR 1635) and Ali Muhammad through LRs & others vs. Chief Settlement Commissioner & others(2001 SCMR 1822).

1. When all these illegalities came to the knowledge of the Senior Member, Board of Revenue/Notified Officer, he wrote letter dated 24.11.2006 to the Chief Settlement Commissioner to look into the matter and decide the same. Thereafter, keeping in view the illegalities/fraud found in the order dated 25.02.2006, Member (Judicial-V) Chief Settlement Commissioner, Board of Revenue, Punjab took cognizance of the matter, passed the impugned order dated 10.1.2009 and after declaring the following allotments as bogus and on the basis of fraud, resumed the land in favour of state:

| | | | | | --- | --- | --- | --- | | Name of Village | Khata RL-II No. | Date of allotment | Area allowed K-M | | Kohar | 59 | 16.02.1972 | 22-10 | | -do- | 60 | 08.02.1972 | 178-08 | | Ajudhiapur | 364 | 08.02.1972 | 256-18 | | -do- | -do- | 05.02.1972 | -do- | | -do- | Nil | -- | 112-05 | | Gohawa | 37 | 11.02.1972 | 272-12 | | Keer Khurd | 77 | 11.02.1972 | 66-00 | | Bhekewal | 901 | 12.02.1972 | 08-00 |

13. In view of the aforementioned record, it is established that the petitioner/alleged allottee obtained the alleged allotment/proposal on the basis of fraud and it is settled law that fraud vitiates the most solemn proceedings and any structure so raised on the basis of such fraudulent transaction stood automatically dismantled and any benefit, right or title obtained by committing fraud wears no sanctity in the eyes of law and ill-gotten gain cannot be perpetuated. In a case cited as The Chief Settlement Commissioner, Lahore Vs. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) the Hon’ble Supreme Court of Pakistan has observed that discretionary relief in writ petition cannot be granted to perpetuate the ill-gotten gains. For ready reference, relevant portion of judgment (supra) is reproduced as under:

“…. 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.”

Reliance is also placed on the cases titled as Nawab Syed Raunaq Ali etc. vs. Chief Settlement Commissioner & others (PLD 1973 SC 236), Lahore Development Authority vs. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097) and Muhammad Attique v. Jami Limited and others (PLD 2010 SC 993).

14. The alleged allottee obtained allotment of land on the basis of alleged order dated 02.02.1972 passed by the Additional Settlement Commissioner (Lands), Lahore to the extent of 1/4th share of his claim whereas he has not appended the said order with instant petition nor produced before this Court. Further no such order is available on record which means that the alleged order dated 02.02.1972 was not passed by any authority. The alleged allottee filed appeal against the order dated 02.02.1972 before the Additional Commissioner (Lands), Lahore Division. Under the guise of above order dated 02.02.1972, the Additional Commissioner (Lands), Lahore Division, straightway proposed land for adjustment/satisfaction of remaining 3/4th share/claim of the petitionervide order dated 08.02.1972 without taking into account the factual and legal aspects of the matter. The relevant portion of the aforesaid order dated 08.02.1972 is reproduced as under:

1. The appellant has mentioned that the following Khasra Nos. may be allotted in satisfaction of his claim:-

Khasra No. 119 to 123, 126, 127, 129, 1126/130, 1127/130, 134 to 136, 149 to 155, 158, 159, 164 to 167, 169, 171 to 181, 183 to 186 and 310, 410-min, 411-min, 471-min, 472, 474 measuring about 372 kanals 5 marlas situated in Mozia Ajudhiapur, Tehsil and District Lahore, Khasra No. 7 to 14, 115, 116, 118, 119, 130 to 133, 138, 141, 148, 149, 151, 82, 84, 86, 91/2, 269 measuring 190 kanals 10 marlas situated in Mozia Kuhar, Tehsil and District Lahore, Khasra No. 209 to 210, 310, 211, 212, 215, 216 and 86 measuring 61 kanals 16 marlas, situated in Mozia Keer Khurd, Tehsil and Distt. Lahore and Khasra No. 834 to 839, 843, 765, 766, 799, 782, 783, 786, 787, 821, 826, 827, 829, 830, 811, 812, 814 to 816, 800 to 803, 805, 828, 882 to 884, 885, 889, 887, 888, 890, 862, 868, 848, 849 to 852, 909 to 914, 215 measuring 358 kanals situated in village Gohawa, Tehsil and District Lahore.

The land against these Khasra No. shall be proposed on high priority basis to the extent of 3/4th of the total entitlement subject to the condition that this allotment does not impinge upon the right of any other claimant in the locality.” (emphasis supplied)

It is worth mentioning here that the appellate authority has a jurisdiction only to accept or annul the order of lower authority/forum but in the instant case neither description of claim nor impugned order was mentioned and no detail of any evacuee claim form number, date of filing of the said claim, its verification and all other allied proceedings have been disclosed at any forum.

The aforementioned fraudulent proposal in favour of the alleged allottee Mohyuddin Muhammad Khan was challenged by the respondents (Ghulam Rasool etc.) through Mukhbari application on 19.06.1972 with the contention that Mohyuddin Muhammad Khan, fraudulently got verified claim in his name and on the basis of said proposal, he secured allotment of land in different villages. Prima facie order dated 2.02.1972 is non-existent in the official record and all the subsequent proceedings have been conducted on the basis of said non-existent order (dated 02.02.1972), as such, it can conveniently be held that a visible fraud has been committed with the ex-evacuee land.

1. The Hon’ble Supreme Court of Pakistan in its judgment reported as Khuda Bakhsh vs. Khushi Muhammad & 3 others (PLD 1976 SC 208) observed that any order passed by the authority without jurisdiction is void ab initio and the same never attained finality in the eyes of law and is liable to be ignored. Relevant portion of the judgment (supra) is reproduced as under:

“The order dated the 9th of May 1962, was void ab initio on account of want of jurisdiction in the Chief Settlement Commissioner to pass the order, and it was, therefore, a nullity and could be ignored.”

Reliance is also placed on the cases titled as Muhammad Younus Khan & 12 others vs. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar & others (1993 SCMR 618), Lal Din & Another vs. Muhammad Ibrahim (1993 SCMR 710), Khair Din vs. Mst. Salaman & others (PLD 2002 SC 677), Talib Hussain & others vs. Member, Board of Revenue & others (2003 SCMR 549), Khadim Hussain vs. Abid Hussain & others (PLD 2009 SC 419), Lahore Development Authority vs. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097).

16. From the perusal of the aforesaid order, even if it is presumed that the order dated 08.02.1972 was passed by Zaka Ullah Naik, Additional Commissioner, even then he has made only proposal for allotment but never passed any straightway order of allotment in favour of the predecessor in interest of the petitioner, as such, all the subsequent events in respect of mutations/alleged allotments in favour of Mohy-ud-Din, automatically dismantled his claims and if the foundation is non-existent then all superstructures so constructed shall automatically collapse. Reliance is placed on the cases titled as Syed Ansar Raza Zaidi & others vs. Chief Settlement Commissioner & others (2007 SCMR 910) & Tufail Muhammad through LRs vs. Messrs Siddique Textile Mills Ltd. & others (2009 SCMR 1091)

17. The land in question is an urban evacuee property. The alleged allotments are shown as to have been confirmed in 1972 whereas these were not implemented in the revenue record and the mutations were entered after lapse of three/four years of passing of the alleged order proposing allotment of land. The revenue record appended with this writ petition shows that the allotment was made on the basis of an order dated 10.02.1973 whereas no such order dated 10.02.1973 is available on the record. When the basic order is non-existent then all the subsequent proceedings propounded thereof is devoid of any legal sanctity. Further the Chief Settlement Commissioner vide Notification No. 1624/78/855/RL dated 19th June, 1978 decided that any allotment 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 allotment order, whichever is later, such allotments may be deemed to have been obtained fraudulently by ante-dating the entries in the register R.L.II and 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 & 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 & 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.

18. Keeping in view the aforementioned facts and circumstances of the case, it can conveniently be held that the Chief Settlement Commissioner rightly cancelled the alleged allotments made in favour of Mohyuddin Muhammad Khan being based on fraud & forgery and resumed the land in favour of the State through the impugned order which does not require any interference by this Court.

1. As regard the claim of the petitioners (the subsequent purchasers from Mohyuddin Muhammad Khan) is concerned, they claim to be the subsequent bona fide purchasers and also claim protection of law under Section 41 of the Transfer of Property Act, 1882 and suffice it to say that it is settled law that a purchaser is saddled with extraordinary responsibility of taking care and caution and to a deeply scrutinize the genuineness or originality or legality of the title of the vendor before purchasing the land under the principle of caveat emptor subject to the incidence of Sections 10 & 11 of Transfer of Property Act, 1882 and any infirmity or deficiency in the title found later shall always travel with the land and purchaser is precluded to subsequently raise plea of protection available under Section 41 of the Act ibid rather he has to face the rigors of his own committed negligence for non-conducting a bona fide and reasonable investigation into title of the vendor under the principle of Caveat Emptor. Reliance is placed on the case titled as Muhammad Yamin and others vs. Settlement Commissioner and others (1976 SCMR 489). Since the alleged allotment of Mohyuddin Muhammad Khan has rightly been declared as bogus by Chief Settlement Commissioner, which order is hereby upheld by this Court, whereafter vendees/ petitioners have no right, title or interest in the demised premises as they have to soar and sink with the alleged original allottee, as such, it is clear that no protection is available to these petitioners under Section 41 of the Act ibid as settled by Hon’ble Supreme Court of Pakistan in a case titled as Bashir Ahmad and others vs. Additional Commissioner with Powers of Settlement Commissioner (L) and others (1983 SCMR 1199) as under:

“... Since, an allotment of land is subject to the provision of sections 10 and 11, every purchaser from a allottee is to be saddled with the knowledge that the transaction of purchase is subject to the incidence of those sections and as such he cannot raise the plea of protection on the principle of Section 41 of the Transfer of Property Act. His remedy is not against the Department but against the vendor. We are, therefore, inclined to hold that the view taken in the earlier two cited cases will govern the contention raised before us.”

In another case titled as Talib Hussain & others vs. Member. Board of Revenue & others (2003 SCMR 549), the Hon’ble Apex Court held as under:

“It is important to emphasis 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.”

Further reliance is placed on a case titled as Abdul Hamid vs. M.B.R. and others (1994 CLC 1160), wherein this Court held as under:

“4. The learned counsel for the petitioners has contended that all the petitioners are bona fide purchasers for value of the land from the transferee and they are entitled to retain the same. It is not disputed that transfer in favour of Noor Muhammad was found to be fraudulent. Not only that it was further found by the Notified Officer that Noor Muhammad the real claimant, A was not traceable and some other person had obtained allotment by impersonating him. As the vendor of the petitioners had no right in the land, he could not pass any title to the petitioners and they have no consequently legal right to retain the land (See Gul Muhammad and others v. The Additional Settlement Commissioner and others (1985 SCMR 491) and Manzoor Hussain v: Fazal Hussain and others (1984 SCMR 1027).”

This Court in a case titled as Mst. Aziz Bibi & 22 others vs. Additional Commissioner (Revenue) with the Powers of Settlement Commissioner (Lands). Lahore Division & another (2002 YLR 3268) has observed

that “since an allotment of land is subject to the provision or sections 10 and 11, every purchaser from an allottee is to be saddled with the knowledge that the transaction of purchase is subject to the incidence of those sections and as such he cannot raise the plea of protection on the principle of bonafide purchaser as envisaged in Section 41 of the Transfer of Property Act. His remedy is not against the Department but against the vendor. In another case titled as Rasheed Ahmad & 2 others vs. Additional Commissioner (Rev.) Notified Officer Gujranwala Division, Guiranwala & others (2007 CLC 1801) the learned Division Bench of this Court held as under:

“8. Abdul Baqi is the original allottee. His claim was found bogus. Sale in favour of respondents will not confer better title to them. They will sink or swim with him and thus, are not protected under Section 41 of the Transfer of Property Act. We respectfully follow the above view.

20. The Chief Settlement Commissioner, after minutely perusing the record and hearing the parties, rightly passed the impugned order which does not require any interference. 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, these writ petitions are hereby dismissedbeing devoid of any merit.

(M.M.R.)

PLJ 2021 Lahore 274

Present: Muhammad Sajid Mehmood Sethi, J.

MUHAMMAD AZAM and 6 others--Petitioners

versus

ADDITIONAL DISTRICT JUDGE, KASUR & others--Respondents

W.P. No 64418 of 2019, decided on 4.11.2020.

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

----S. 9--Civil Procedure Code, (V of 1908), O.VII R. 11--Suit for possession--Application for rejection of plaint--Dismissed--Revision petition dismissed--Scope of revision--Power of Court--Challenge to--Revisional Court, while dismissing revision petition, touched controversy which was not agitated before it as direction to this extent could only be issued by Trial Court where lis was pending--Since Revisional Court was not authorized to pass any such directions, same are without any lawful authority--Needless to say that revision and appeal are two different fields--Appeal is continuation of original suit and Appellate Court has got ample power to thrash out entire evidence and scrutinize available documents in light of arguments advanced by respective parties--On other hand, scope of revision is limited to some illegality, material irregularity or jurisdictional defect in impugned order/judgment--A bare perusal of Section 115 CPC clearly shows that scope of revision is limited to above points--Petition was allowed. [P. 276] A & B

2009 SCMR 589 ref.

M/s. Muhammad Saim Chaudhry and Muhammad Yar Gondal, Advocates for Petitioners in this as well as connected petitions.

Mr. M. Amir Javed Bhatti, Advocate for Respondents No. 3 to 8.

Date for Hearing: 4.11.2020

Order

This consolidated order shall dispose of instant writ petition along with following connected petition as common questions of law and facts are involved in these cases:

W.P. No. 64423 of 2019 titled Muhammad Azam & others v. Additional District Judge, Kasur & others

1. Through instant petition, petitioners have assailed judgment dated 08.10.2019, passed by learned Additional District Judge, Kasur, to the extent of additional directions, which were issued while dismissing revision petition challenging order dated 21.06.2018, passed by learned Civil Judge, Kasur, filed by Respondents No. 3 to 8.

2. Brief facts of the case are that petitioners filed suit for possession through partition. During proceedings of the suit, Respondents No. 3 to 8 filed application under Order VII Rule 11 CPC, which was dismissed vide order dated 21.06.2018. Feeling aggrieved, petitioners filed revision petition before learned Additional District Judge, which was also dismissed vide judgment dated 08.10.2019, with above-reproduced directions. Hence, instant petition.

3. Learned counsel for petitioners submits that while passing impugned judgment, learned Revisional Court has stayed the proceedings of learned Trial Court and issued certain direction to the ADLR, which is absolutely without jurisdiction and unsustainable in the eye of law. In support, he has referred to Gul Rehman v. Gul Nawaz Khan (2009 SCMR 589). When confronted, learned counsel for respondents could not give any satisfactory reply as to whether learned Revisional Court could give any such direction while dismissing revision petition, especially when the issue was only to the extent of vires of order passed by Trial Court dismissing application under Order VII Rule 11 CPC.

4. Heard. Available record perused.

5. Perusal of record shows that the only controversy agitated before learned Revisional Court was relating to the vires of order dated 21.06.2018, passed by Trial Court, whereby application under Order VII Rule 11 CPC, filed by Respondents No. 3 to 8, was dismissed. However, while upholding the aforesaid order, learned Revisional Court has made following additional observations, which are beyond its scope and the same are reproduced as under:

“6. ... ADLR shall conclude the proceedings under progress and issue the fresh fard regarding the entitlement of the parties in the suit land for partition purpose till then suit shall not proceed ....”

Learned Revisional Court, while dismissing revision petition, touched the controversy which was not agitated before it as direction to this extent could only be issued by learned Trial Court where the lis was pending. Since learned Revisional Court was not authorized to pass any such directions, same are without any lawful authority.

7. Needless to say that revision and appeal are two different fields. Appeal is the continuation of original suit and Appellate Court has got ample power to thrash out the entire evidence and scrutinize the available documents in the light of arguments advanced by the respective parties. On the other hand, scope of revision is limited to some illegality, material irregularity or jurisdictional defect in the impugned order/judgment. A bare perusal of Section 115 CPC clearly shows that scope of revision is limited to the above points. Reference is made to Gul Rehman’s case supra.

1. Resultantly, instant petition, along with connected petition, is allowed and impugned judgment is modified to the extent as indicated in para 6 supra.

(Y.A.) Petition allowed

PLJ 2021 Lahore 277

Present: Ch. Muhammad Iqbal, J.

MUHAMMAD AKRAM--Petitioner

versus

MEMBER, BOARD OF REVENUE/CHIEF SETTLEMENT COMMISSIONER, PUNJAB LAHORE etc.--Respondents

W.P. No. 78-R of 2015, heard on 14.9.2020.

Constitution of Pakistan, 1973--

----Art. 199--Application for purchase of state land--Dismissed--Challenge to--Illegal occupant--Jurisdiction--Petitioner 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. [P. 284] A

Evacuee Property & Displaced Persons Laws (Repeal) Act, 1975--

----S. 3--Evacuee Property owned by Provincial Government--Public property and interest--Obligation of Court--Direction to--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-- Chief Settlement Commissioner rightly passed direction to District Collector, Sheikhupura to put available evacuee land for disposal through unrestricted public auction and after discussing in detail concluded that petitioner has failed to fulfill criteria of Section 3 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975--Another aspect of this case is that admittedly land in question is a public property which cannot be doled upon any blue eyed person through private treaty to extend favoritism, nepotism and for undue enrichment of individuals at resources of public, meant for ultimate welfare and betterment of people--Further if so desired by concerned authority, such land should be disposed of through unrestricted public auction--Petitioner has failed to point out any perversity, illegality or any jurisdictional defect in impugned auction proceedings calling for any interference by this Court in its constitutional jurisdiction--Petition was dismissed. [Pp. 284, 285, 286 & 290] B, C, D & E

PLD 2005 SC 337 and PLD 2010 Lahore 510.

Ch. Iqbal Ahmad Khan, Advocate for Petitioner.

Mr. Waseem Iqbal Butt, Assistant Advocate for Respondents.

Mr. Osama Hanif, Advocate for Settlement Department.

Date for Hearing: 14.9.2020

Judgement

Through this Writ Petition, the petitioner has challenged the order dated 02.04.2015, passed by the Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore whereby the application of the petitioner for the purchase of the state land measuring 03 Kanal 15 Marla situated in Mananwala Karpal Singh, Tehsil & District Sheikhupura through private treaty was dismissed. The petitioner has also prayed for passing a direction to the Chief Settlement Commissioner to grant proprietary rights to the petitioner subject to payment of price at the rate of Rs. 100 PIU according to the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.

1. Brief facts of the case are that the petitioner is an illegal occupant of state land measuring 03 Kanal 15 Marla comprising square No. 221 Kila No. 15/3, Square No. 222 Kila No. 20/1, Kila No. 10/2, Killa No. 11/1, Killa No. 12/4 situated in revenue estate Mananwala Karpal Singh Tehsil & District Sheikhupura and the petitioner filed an application for grant of the proprietary rights of the said land under Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 which was dismissed by the Member, Board of Revenue/Chief Settlement Commissioner, Punjab vide impugned order dated 02.04.2015. Hence, this writ petition.

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 petitioner is an illegal occupant over the state land (suit land). The suit land was resumed from one Riasat Ali on 27.11.1990 in favour of the state. As per the revenue record, the petitioner was not in cultivating possession of the land since 1993-1994 of Square No. 221 Kila No. 15/3 rather one Abdullah and Muhammad Akram had been cultivating the same whereas the possession of the square No. 222 Kila No. 10/2 was in the name of one Rasheed for the period Kharif, 1971 to Rabi, 1974. The present petitioner got possession of the suit land in the year 1977. The land of square No. 222 Kila No. 20/1 is in possession of Riasat Ali since Rabi, 1985 which, as per the report of Halqa Patwari submitted before this Court, has been resumed in favour of state through Mutation Nos. 7472 and 25476 dated 22.07.2020.

4. 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:

5. 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 said 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 to the said occupant 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 llaqa magistrate any Magistrate 1st 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 15-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 12 1/2 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.l. Units.

2. As far as Categories (B) and (C) are concerned, the land is to be disposed of through open auction under Chapter-Ill 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.

CATEGORY ‘B AND 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 Farid Kot House, Lahore.

In addition to the above the Hon’ble Supreme Court of Pakistan in its decision dated 02.01.2015 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. Considering the above, we are clear firstly that the conclusion arrived at by the learned Single Bench in para 9 of the impugned judgment, as reproduced above is incorrect and the reliance on the case of Muhammad Hussain (supra) is also misplaced. Secondly, it is evident that as of date, the respondents can have no claim on the property in question. 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 petitioner 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.”

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. The land in question, as per the site plan presented by the Halqa Patwari before this Court, is located on main Faisalabad Road, which is apparently valuable land which cannot be given to the petitioner on a concessional rate as he does not fulfill the conditions of Section 3 of the Act ibid. The Chief Settlement Commissioner rightly passed direction to the District Collector, Sheikhupura to put the available evacuee land for disposal through unrestricted public auction and after discussing in detail concluded that the petitioner has failed to fulfill the criteria of Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. For ready reference, operative part of order dated 02.04.2015 is reproduced as under:

“4. After hearing the arguments and minutely perusing the record, it has become clear that as per provisions contained in Section 3 of Repealing Act of 1975 and Scheme framed thereunder the intending purchaser is required in cultivating possession over the agricultural land since kharif 1971 but according to the copies of Khasra over the agricultural land since kharif 1971 but according to the copies of Khasra Girdawari produced by the petitioner in the instant case the present petitioner is not in continuous cultivating possession over the land in question. According to the revenue record of the year 1993-94 the petitioner is not cultivating the land bearing square No. 221, killa No. 15/3 rather Abdullah and Muhammad Akram were cultivating the same area whereas the possession of the square No. 222, killa No. 10/2 was in name of one Rasheed in the period of “crucial harvest i.e. Kharif 1971 to Rabi 1974 and the present petitioner came into the possession of said area in the year 1977, similarly the area comprising square No. 222 killa No. 20/1 is in cultivating possession of Riasat Ali since Rabi 1985. As the petitioner is not in continuous cultivating possession over the land in question and he did not fulfill the required criteria, therefore, he is not entitled for the transfer of the land in question at concessional rate under the law, hence the request of the petitioner for the transfer of the land in question is hereby rejected and it is ordered that the land in question shall be disposed of by the unrestricted public auction by committee to be headed by District Collector, Sheikhupura.”

8. Another aspect of this case is that admittedly the land in question is a public property which cannot be doled upon any blue eyed person through private treaty to extend favoritism, nepotism and for undue enrichment of individuals at the resources of public, meant for ultimate welfare and betterment of people. Further if so desired by the concerned authority, such land 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.

1. 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 properly 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”.

1. 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 set 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)

1. 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)

1. 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 Kami 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 Charaan 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).

1. 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.”

For what has been discussed above, the petitioners have not fulfilled the criteria of Section 3 of Act ibid, as such, the Chief Settlement Commissioner rightly dismissed the application of the petitioner.

10. Learned counsel for the petitioner has failed to point out any perversity, illegality or any jurisdictional defect in the impugned auction proceedings 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.

(M.M.R.) Petition dismissed

PLJ 2021 Lahore 290

Present: Faisal Zaman Khan, J.

JARANWALA BAR ASSOCIATION, etc.--Petitioners

versus

VICE-CHAIRMAN, PUNJAB BAR COUNCIL, etc.--Respondents

W.P. No. 2307 of 2021, decided on 15.1.2021.

Legal Practitioners and Bar Councils Act, 1973 (XXXV of 1973)--

----S. 13(2)--Constitution of Pakistan, 1973, Art. 199--Right of appeal--Alternate remedy--Maintainability--Counsel has conceded to this fact and has not been able to give any plausible explanation as to non-availing of such remedy and maintainability of petition--Placing afore-noted case law in juxtaposition with facts of present case, it is manifest that under sub-section (2) of S. 13 of Act a right of appeal has been provided to petitioners against order passed by Respondent No. 1, which they have failed to avail, therefore, this petition is not maintainable--Another aspect which makes this petition not maintainable is that against Bar Councils and/or its functionaries (including Punjab Bar Council) a writ petition is not maintainable. [Pp. 291 & 292] A, B & C

PLD 2010 SC 969 & 2020 SCMR 631.

Hafiz Abdul Rehman Ansari, Advocate for Petitioners.

Date of hearing: 15.1.2021.

Order

Through this petition order dated 08.01.2021 passed by Respondent No. 1 has been assailed.

1. At the outset of hearing, learned counsel has been confronted with the proposition that since an alternate efficacious remedy under sub-section (2) of Section 13 of the Legal Practitioners and Bar Councils Act, (XXXV of 1973) (ACT) is available to the petitioners against the order passed by Respondent No. 1 by way of filing an appeal before the Pakistan Bar Council, therefore, this petition is not maintainable.

3. Learned counsel has conceded to this fact and has not been able to give any plausible explanation as to non-availing of such remedy and the maintainability of this petition.

1. Arguments heard. Record perused.

2. The Honourable Supreme Court of Pakistan in its judgment reported as Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others (2011 SCMR 592) has held that every Court prior to taking cognizance of and adjudicating upon an issue should first resort to the question of assumption of jurisdiction of the Court. If it comes to the conclusion that jurisdiction can be assumed only then it can adjudicate upon the issue. The question of assumption of jurisdiction and its exercise has very comprehensively been dealt with and decided by the Honourable Supreme Court of Pakistan in judgments reported as Fauji Foundation and another v. Shamimur Rehman (PLD 1983 SC 457) and The State v. Zia ur Rehman and others (PLD 1973 SC 49).

3. It has also been held by the Honourable Apex Court that in the wake of availability of an alternate efficacious remedy to a litigant

under the law, jurisdiction of this Court is even otherwise barred. Reliance can be placed on Indus Tranding and Contracting Company v. Collector of Customs (Preventive) Karachi and others (2016 SCMR 842), Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813) and Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others (PLD 2010 SC 969).

7. Placing the afore-noted case law in juxtaposition with the facts of the present case, it is manifest that under sub-section (2) of Section 13 of the Act a right of appeal has been provided to the petitioners against the order passed by Respondent No. 1, which they have failed to avail, therefore, this petition is not maintainable.

8. Another aspect which makes this petition not maintainable is that against the Bar Councils and/or its functionaries (including Punjab Bar Council) a writ petition is not maintainable. For reference reliance can be placed on a judgment reported as Mirza Muhammad Nazakat Baig v. Federation of Pakistan through Secretary Ministry of law and Justice, Islamabad and another (2020 SCMR 631).

1. In view of the above, this petition being not maintainable is dismissed in limine.

(M.M.R.) Petition was dismissed

PLJ 2021 Lahore 292

Present: Ch. Muhammad Masood Jahangir, J.

SAFDAR HUSSAIN--Petitioner

versus

MUHAMMAD AFZAL and another--Respondents

C.R. No. 4603 of 2015, heard on 15.1.2021.

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

----S. 9--Suit for possession through pre-emption--Dismissed--Sale of property--Performance of talabs--Constitution of majlis for pronouncement of talbs--Muwathibat--Right of pre-emption--Concurrent findings--Evidence of pre-emptor was minutely thrashout by Courts--Negative findings--Challenge to--It was sine qua non for petitioner/pre-emptor to establish constitution of majlis as well as pronouncement of , talb-i-muwathibat--Participant of majlis (PW5) did not disclose time of performance of first demand in his statement-in-chief--Law is now clear that very right of pre-emption is not activated unless talab-e-munwathibat is performed, it should not be dubbed as a mere technicality, but at times it acquires such dimension that it becomes more important than superior right because it essentially is a sine qua non of right of pre-emption--Courts below minutely thrashed evidence of pre-emptor while capturing salient variations and major contradictions in statements of witnesses and perfectly rendered negative findings on pivotal issue qua talbs--Petitioner had failed to convince that impugned decrees were tainted with misreading or non-reading of evidence, thus no case of interference is made out--Petition dismissed. [Pp. 293 & 294] A, B, C, D & E

2007 SCMR 1 ref.

Mr. Ali Hussain Mohsin, Advocate for Petitioner.

Mr. Athar Ali Bhindar, Advocate for Respondents.

Date of hearing: 15.1.2021.

Judgment

The concurrent judgments of the two Courts below, whereby suit for possession through pre-emption as well as appeal of the petitioner unanimously dismissed, are the subject of petition in hand.

1. Arguments heard and record perused.

3. In fact, the transaction reflected in sale-deed dated 24.02.2010 was pirated by the petitioner through suit asserting his superior right and performance of requisite talbs. Ex-fade, in para-3 of the plaint of his suit, it was the stance of the petitioner that on 17.06.2010 at 6.00 P.M., he in his haveli was sitting with his brother, Farrukh Humayun when Muhammad Khalid (PW6) appeared there and on his information about the sale, the first demand was fulfilled. It was sine qua non for the petitioner/pre-emptor to establish constitution of majlis as well as pronouncement of the talb-i-muwathibat as pleaded in said para of the plaint. Although he being PW.4 narrated the same stance that he along with his brother was sitting in his haveli at 6.00 P.M. when Muhammad Khalid appeared there and communicated the sale but his brother/participant of the majlis (PW5) did not disclose the time of performance of first demand in his statement-in-chief. No doubt, he tried to cover this aspect in his cross-examination, but Muhammad Khalid, the informer (PW6) did not disclose the presence of Farrukh Humayun in the majlis through his statement-in-chief. The performance of talb-e-mmvathibat is not a mere technicality viz-a-viz the superior right of pre-emption. The law is now clear that the very right of the pre-emption is not activated unless talb-e-munwathibat is performed. It should not be dubbed as a mere technicality, but at times it acquires such dimension that it becomes more important than the superior right because it essentially

is a sine qua non of the right of the pre-emption as has been held in a case reported as Fazal Din through L.Rs. vs. Muhammad Inayat through L.Rs (2007 SCMR 1). The learned Courts below minutely thrashed the evidence of the pre-emptor while capturing salient variations and major contradictions in the statements of PWs and perfectly rendered negative findings on pivotal issue qua talbs.

4. Mr. Ali Hussain Mohsin, Advocate for the petitioner although argued the case to the best of his ability, but was not able to persuade that either the learned lower fora committed material irregularity/patent illegality or that its unanimous findings were suffering from jurisdictional defect. He also failed to convince that the impugned decrees were tainted with misreading or non-reading of evidence, thus no case of interference is made out. This Civil Revision being devoid of any merit and force is hereby dismissed. No order as to costs

(Y.A.) Petition dismissed

PLJ 2021 Lahore 294

Present: Shahid Waheed, J.

SAJAWAL, etc.--Petitioners

versus

SECRETARY LOCAL GOVERNMENT, etc.--Respondents

W.P. No. 39226 of 2020, decided on 7.9.2020.

Constitution of Pakistan, 1973--

----Art. 199--Petitioners were employees of municipal committee--Non-implementation of instructions of Govt.--Issuance of letter--Non-regularization of service--Representation of petitioners--Opportunity of hearing--Direction to--In first instance respondent should address grievance voiced in instant petition--Office is, therefore, directed to remit a copy of instant petition to respondent with a direction to treat it as representation of petitioners and decide same strictly in accordance with law, after affording opportunity of hearing to all concerned; and, through a well-reasoned speaking order as expeditiously as possible preferably within a period of four weeks--Petition disposed of. [P. 295] A

Ch. M. Ghazanfar Ali Bhatti, Advocate for Petitioners.

Date of hearing: 7.9.2020.

Order

Petitioners are employees of Municipal Committee Sheikhupura.

1. Grievance voiced through this petition is that Respondent No. 2 without any lawful excuse is not implementing the instructions of Government of the Punjab, Local Government and Community Development Department issued through letter dated 27.12.2019 and, thus, inaction on the part of Respondent No. 2 not regularizing services of the petitioners is not sustainable in the eye of law.

3. After hearing, I am of the view that in the first instance Respondent No. 2 should address the grievance voiced in this petition. Office is, therefore, directed to remit a copy of this petition to Respondent No. 2 with a direction to treat it as representation of the petitioners and decide the same strictly in accordance with law, after affording opportunity of hearing to all concerned; and, through a well-reasoned speaking order as expeditiously as possible preferably within a period of four weeks.

1. Petitioners are directed to appear before Respondent No. 2 on 14.09.2020.

2. Disposed of.

(Y.A.) Petition disposed of

PLJ 2021 Lahore 295 (DB)

Present: Sayyed Mazahar Ali Akbar Naqvi and Farooq Haider, JJ.

Mst. MUMTAZ YAQOOB etc.--Appellants

versus

ADDITIONAL SESSIONS JUDGE, etc.--Respondents

ICA Nos. 636, 637 of 2014 & 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 & 22-B--Applications for registration of case before Ex-officio Justice of Peace--Accepted--Consolidated order--Previous enmity--Overlooking of facts and circumstances--Challenge to--It is categorically mentioned by police in their comments that there is previous enmity between parties on murder of three persons from side of respondent and in this regard said respondent has registered a criminal case--Household articles of appellant has been kept in house of her close relative, who is brother-in-law of appellant 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 and others--While passing orders Ex. Officio Justice of Justice 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--No illegality or perversity in impugned order, which is based on cogent reasons and needs no interference by Court--Intra Court dismissed. [P. 297] A, B & C

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 Nos. 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 Nos. 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, whovide 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.

(Y.A.) Appeal dismissed

PLJ 2021 Lahore 298

Present: Shahid Bilal Hassan, J.

QAMAR ZAMAN--Appellant

versus

GHULAM ABBAS--Respondent

R.F.A. No. 379 of 2013, heard on 2.12.2020.

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

----S. 96 & O.XXXVII Rr. 1, 2--Suit for recovery--Failing to producing evidence despite of numerous opportunities--Closing of right to leading of evidence--Dismissal of suit--Adamant attitude of appellant--Disobedience of orders of Court--Challenge to--So many adjournments were granted to appellant but on each and every date he requested for further time, which seems that he had no evidence to produce in support of his claim--Even last and final opportunity was granted with cost but even then such indifferent and adamant demeanour was adopted and no heed was paid to orders of trial Court--Despite such a leniency shown by trial Court instead of producing his evidence counsel sought further time, which shows appellant's rigid and adamant attitude towards orders of Court--Appellant pursued his case and shows his disobedience toward orders of Court; thus, such like indolent persons cannot seek favour of law, because law favours vigilant and not indolent--So far recording of one P.W. that was a summoned witness and even he was notary public, who allegedly wrote promissory note and receipt; thus, without production of further evidence, on solitary statement of said witness case could not be decided--Appeal was dismissed.

[Pp. 299 & 301] A, B & C

2015 SCMR 1401 and 2020 SCMR 300 ref.

Mr. Usman Sher Gondal, Advocate for Appellants.

Ex parte on 05.06.2017 for Respondents.

Date of hearing: 2.12.2020.

Judgment

Precisely, the appellant instituted a suit for recovery of Rs. 600,000/- under Order XXXVII, Rules 1 & 2 of the Code of Civil Procedure, 1908 against the respondent, on the basis of promissory note and receipt dated 07.07.2009. After acceptance of application for leave to defend, the appellant filed written statement and controverted the averments of plaint. Out of the divergent pleadings of the parties, the learned trial Court framed issues on 19.05.2011 and suit was fixed for evidence of the appellant but despite availing numerous opportunities including last and final opportunities with costs, he failed to produce his evidence except evidence of summoned witness i.e. notary public as P.W.1 on 19.07.2012; therefore, the learned trial Court closed his right to lead evidence under Order XVII, Rule 3 of the, CPC and dismissed the suit for want of evidence vide impugned judgment and decree dated 04.01.2013; hence, the instant appeal.

1. Heard.

3. Considering the arguments and perusing the record, made available, as well as going through the impugned judgment and decree passed by the learned Court below, it becomes diaphanous that the suit under discussion was instituted on 04.01.2010 and after framing of issues on 19.05.2011 so many adjournments were granted to the appellant but on each and every date he requested for further time, which seems that he had no evidence to produce in support of his claim. Even last and final opportunity was granted with cost but even then such indifferent and adamant demeanour was adopted and no heed was paid to the orders of the learned trial Court. Despite such a leniency shown by the learned trial Court instead of producing his evidence learned counsel sought further time, which shows appellant's rigid and adamant attitude towards the orders of the Court. The above picture of affairs makes it vivid that how the appellant pursued his case and shows his disobedience toward the orders of the Court; thus, such like indolent persons cannot seek favour of law, because law favours the vigilant and not the indolent. In this regard reliance is placed on Rana Tanveer Khan v. Naseer-ud-Din and others (2015 SCMR 1401), wherein it has been unequivocally held:-

'…. It is clear from the record that the petitioner had availed four opportunities to produce his evidence and in two of such dates (the last in the chain) he was cautioned that such opportunities granted to him at his request shall be that last one, but still on the day when his evidence was closed in terms of Order XVII, Rule 3, C.P.C. no reasonable ground was propounded for the purposes of failure to adduce the evidence and justification for further opportunity, therefore, notwithstanding that these opportunities granted to the petitioner were squarely fell within the mischief of the provisions ibid and his evidence was rightly closed by the trial Court. As far as the argument that at least his statement should have been recorded, suffice it to say that the eventuality in which it should be done has been elaborated in the latest verdict of this Court (2014 SCMR 637).

From the record it does not transpire if the petitioner was present on the day when his evidence was closed and/or he asked the Court to be examined; this has never been the case of the petitioner throughout the proceedings of his case at any stage; as there is no ground set out in the first memo. of appeal or in the revision petition.'

It was further held that:

'2. ... Be that as it may, once the case is fixed by the Court for recording the evidence of the party, it is the direction of the Court to do the needful, and the party has the obligation to adduce evidence without there being any fresh direction by the Court, however, where the party makes a request for adjourning the matter to a further date(s) for the purpose of adducing evidence and if it fails to do so, for such date(s), the provisions of Order XVII, Rule 3, C.P.C. can attract, especially in the circumstances when adequate opportunities on the request of the party has been availed and caution is also issued on one of such a date(s), as being the last opportunity(ies).'

Recently, while affirming the above said view, the Apex Court of country in a judgment reported as Moon Enterpriser CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another (2020 SCMR 300) has invariably and vividly further held that:

‘4……. It is unfortunate that the prevailing pattern in the conduct of litigation in the Lower Courts of Pakistan is heavily permeated with adjournments which stretch, what would otherwise be a quick trial, into a lengthy, expensive time-consuming and frustrating process both for the litigant and the judicial system. While some adjournments are the consequences of force majeure, most are not. To cater for the later and to discourage misuse the C.P.C. through Order XVII, Rule 3 has provided the Court with a curse of action that checks such abuse.’

In the said judgment, it was further held:-

'6. A bare reading of Order XVII, Rule 3, C.P.C. and case law cited above clearly shows that for Order XVII, Rule 3, C.P.C. to apply and the right of a party to produce evidence to be closed, the following conditions must have been met:

i. at the request of a party to the suit for the purpose of adducing evidence, time must have been granted with a specific warning that such opportunity will be the last and failure to adduce evidence would lead to closure of the right to produce evidence; and

ii. the same party on the date which was fixed as last opportunity fails to produce its evidence.

In our view it is important for the purpose of maintaining the confidence of the litigants in the Court systems and the presiding officers that where last opportunity to produce evidence is granted and the party has been warned of consequences, the Court must enforce its order unfailingly and unscrupulously without exception. Such order would in our opinion not only put the system back on track and reaffirm the majesty of the law but also put a check on the trend of seeking multiple adjournments on frivolous grounds to prolong and delay proceedings without any valid or legitimate rhyme or reason. Where the Court has passed an order granting the last opportunity, it has not only passed a judicial order but also made a promise to the parties to the lis that no further adjournments will be granted for any reason. The Court must enforce its order and honor its promise. There is absolutely no room or choice to do anything else. The order to close the right to produce evidence must automatically follow failure to produce evidence despite last opportunity coupled with a warning. The trend of granting (Akhri Mouqa) then (Qatai Akhri Mouqa) and then (Qatai Qatai Akhri Mouqa) make a mockery of the provisions of law and those responsible to interpret and implement it. Such practices must be discontinued, forthwith.’

So far the recording of one P.W. is concerned, that was a summoned witness and even he was notary public, who allegedly wrote the promissory note and receipt; thus, without production of further evidence, on the solitary statement of the said witness case could not be decided.

1. In view of the above discussion and observations, while placing reliance on the judgments supra, the appeal in hand comes to naught and stands dismissed with no order as to the costs.

(Y.A.) Appeal dismissed

PLJ 2021 Lahore 302 (DB)

Present: Abid Aziz Sheikh and Mirza Viqas Rauf, JJ.

NEW COLLEGE PUBLICATIONS--Appellant

versus

GOVERNMENT OF PUNJAB etc.--Respondents

ICA No. 1695 of 2021, decided on 14.1.2021.

Law Reforms Ordinance, 1972 (XII of 1972)--

----Ss. 1, 2, 3 & 3(3)--Writ petition--Stay was granted--Application for clarification of order--Disposed of--Modification of order--Maintainability--Interlocutory order--Challenge to--Where order does not decide matter finally and proceedings still remain to be tried and rights of parties in disputes are yet to be determined finally, order cannot be termed as final order but same will be "interlocutory order" in nature against which appeal under Section 3(3) of Ordinance will not be competent--Only application for clarification of order was disposed of, whereby respondents were allowed to complete tender process but tender process shall remain subject to final outcome of writ petition--Impugned order itself clarifies that main lis is yet to be decided--Substantial proceedings and rights of parties in main writ petition are yet to be decided on merits--Impugned order is merely an "interlocutory order" and not final order disposing of entire case in term of Section 3(3) of Ordinance--Appeal dismissed. [P. 304] A & B

2018 CLD 88 and 2011 YLR 1070 ref.

MianAsghar Ali, Advocate for Appellant.

Mr. Tahrim Iqbal Butt, AAG on Court's call.

Date of hearing: 14.1.2021.

Order

This Intra Court Appeal has been directed against order dated 31.12.2020 passed by learned Single Bench of this Court whereby application for clarification (C.M. No. 4/2020) filed by Respondents No. 2 to 6 was disposed of.

1. Relevant facts are that appellant filed Writ Petition No. 66332/2020, in which interim stay was granted on 16.12.2020. However, on application (CM No. 4/2020), for clarification of order dated 16.12.2020 filed by Respondents No. 2 to 6, the stay order was modified to the effect that respondents were allowed to complete the tender process, however, subject to final outcome of writ petition. The appellant being aggrieved has filed this appeal.

2. Learned counsel for the appellant at the very outset confronted that how this appeal is maintainable against impugned interlocutory order, in view of bar contained in Section 3(3) of the Law Reforms Ordinance, 1972 (Ordinance). Learned counsel for the appellant in response submits that as C.M. No. 4/2020 for clarification of stay order has finally been decided, therefore, impugned order is not an interlocutory order but a final order, hence this appeal is maintainable.

3. Heard. Before touching merits of the case, we would like to decide the threshold question of maintainability of this appeal under Section 3 of the Ordinance. Undoubtedly under Section 3(3) of the Ordinance, no appeal shall lie under sub-section (1) or (2) of Section 3 of the Ordinance against interlocutory order or order does not dispose of entire case before the Court. The word "interlocutory order" has not been defined in the Ordinance or Civil Procedure Code of 1908 (CPC). However, Hon'ble Supreme Court in Noor Muhammad Lambardar vs. Member (Revenue) etc (2003 SCMR 708) while explaining the word "interlocutory" held that interlocutory order is an order, in which, no final verdict is pronounced but an ancillary order with the intention to keep it operative till final decision, passed.

4. Similarly learned Division Bench of this Court in case National University of Sciences etc vs. Dayyan Atta Tareen (1011 YLR 1070) defined the word "interlocutory order" as under:

"8. The term "Interlocutory order" does not find any specific definition in Civil Procedure Code of 1908 or the Law Reforms Ordinance, 1972. In Black's Law Dictionary, Fifth Edition the term "interlocutory" has been defined as "provisional" interim temporary; not final. Something intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy.

1. The ordinary meaning of an interlocutory order or judgment is given in the Concise Oxford English Dictionary to be "(of a decree or judgment) given provisionally during the course of a legal action".

2. Similarly, the terns "interim" has been defined in Black's Law Dictionary Fifth Edition as "in the meantime, Meanwhile; temporary between".

3. The term has also been interpreted by Supreme Court of Pakistan in a judgment reported as Messrs National Security Insurance Co. Ltd. v. Messrs Hoechst Pakistan Ltd. and others (PLD 1990 Supreme Court 709). After discussing various judgments it has been laid down that "an order, which does not

decide the matter finally and the proceedings still remain to be tried and the rights in dispute between the parties have yet to be determined is not a final order and that it is an interlocutory order in nature against which an appeal before the Court is not competent".

Same view was also expressed by this Court in Messrs Qadoos Brothers vs. Judge Banking Court etc (2018 CLD 88) where it is held that if the order simply decides ancillary and incidental matter leaving substantial proceedings yet to be decided for decision of the case on merits, the order shall be "interlocutory" in character.

6. From the above case law it can be deduced that where order does not decide the matter finally and the proceedings still remain to be tried and the rights of the parties in disputes are yet to be determined finally, the order cannot be termed as final order but the same will be "interlocutory order" in nature against which appeal under Section 3(3) of the Ordinance will not be competent.

7. The above definition of word "interlocutory order" when apply to the impugned order, it shows that only application for clarification of order dated 16.12.2020 was disposed of, whereby respondents were allowed to complete tender process but said tender process shall remain subject to final outcome of writ petition. The impugned order itself clarifies that main lis is yet to be decided. This demonstrates that the substantial proceedings and rights of the parties in main writ petition are yet to be decided on merits. Therefore, it can safely be concluded that impugned order is merely an "interlocutory order" and not final order disposing of entire case in term of Section 3(3) of the Ordinance.

1. In view of above discussion, the impugned order being interlocutory order, this appeal is not maintainable, which is accordingly dismissed.

(Y.A.) Appeal dismissed

PLJ 2021 Lahore 304

Present: Ch. Muhammad Masood Jahangir, J.

Mst. SHARIFAN NASEEM etc.--Petitioners

versus

NASIR MEHMOOD etc.--Respondents

C.R. No. 378 of 2003, decided on 26.10.2020.

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

----S. 115--Specific Relief Act, (I of 1877), Ss. 43 & 39--Suit for declaration and cancellation entries in revenue record--Dismissed-- Unregistered memo. of gift--Non-producing of signatories--Legal requirement--Presumption of truthness--Examination of weak and meager evidence--Deprivation of legal heirs--Challenge to--DW1, who in no capacity was signatory of Exh.D1 also failed to demonstrate time and date about happening of original transaction--Weak and meager evidence was examined, which was not enough to deprive legal heirs to claim their shari shares in suit property--Document was not a registered document, but merely scribed on plain paper and it was not essential for Court to attach presumption of execution to a document more than 30 years old in all cases without considering other related facts of case to draw such inference--On account of appreciation of evidence available on suit file, presumption under discussion as to validity and execution , of Exh.D1 would not apply--Property was under clog or there was any restraining order for its alienation, then why it was not permanently transferred by donor through execution of registered gift deed--Moreover, execution of present memo of gift on a plain paper was sufficient to doubt its authenticity--It is very easy to manage such like document and in such situation, a high quality evidence is always required to rely thereupon, which is lacking here--It was again a drawback that after execution of Exh. donor survived for more than two decades but neither it was brought in light in his life nor an effort was made for its registration--There is no doubt that record of Excise & Taxation Department, whatever it may be and utility bills could not be made basis to constitute title-- It is a gift, which tantamount to disinheriting majority of legal heirs--In such circumstance when, through a gift, deprivation of some or either of legal heir is involved, heavy onus to prove original transaction as well as reasons for doing so strongly rested upon beneficiary of such gift--Petitioners badly failed to persuade that either impugned judgment was result of material irregularity/ patent illegality or tainted with misreading and non-reading of evidence or jurisdictional defect on part of Appellate Court to call for interference by High Court--Scope of interference in revisional jurisdiction by High Court is restricted and narrower, which is only meant for correcting errors of facts and law, if are found to have been committed by subordinate Court in discharge of its judicial functions--Petition dismissed.

[Pp. 307, 308 & 309] A, B, C, D, E & F

2020 CLC 1048, 2020 YLR 1466, 2017 SCMR 1934, 1992 CLC 873, 2018 CLC 866, 2007 SCMR 181 and 2018 SCMR 141 ref.

M/s. Sher Baz Ali & Farhan Ali Khan, Advocates for Petitioners.

M/s. Amir Farooq, Ch. Riasat Ali & Sahibzada Nasir Mehmood Ch. Advocates for Respondents No. 1 to 6.

Mr. Ihsan Ahmad Bhindar, Advocate for Respondents No. 10 and 11 for Respondents.

Date of hearing: 26.10.2020.

Judgment

Undeniably the suit shop was titled by Chanan Din, the forefather of the present parties, who departed in 1988 and thereafter his son Khushi Muhammad Akhtar also passed away in 1995. Muhammad Sharif, ascendant of Respondents No. 1 to 6, son of Chanan Din and real brother of Khushi Muhammad Akhtar when tried for the attestation of inheritance mutation qua shop in dispute, it was apprised by the petitioners that it stood already gifted out by Chanan Din through unregistered memo. of gift (Exh.D1) way back in 1965 to Khushi Muhammad (ascendant of petitioners), compelling Muhammad Sharif to institute the suit to claim his Shari share in the suit property besides for cancellation of Exh.D1 asserting it to be forged, fictitious and collusive. The said plaintiff also prayed for the cancellation of entries in favour of Khushi Muhammad solely recorded in record of Excise and Taxation Department. The suit was contested by the petitioners being successors-in-interest of beneficiary. Thus issues were materialized and although learned Trial Court while appreciating evidence of the parties dismissed the suit vide judgment dated 24.10.2001, however, it could not sustain having been set aside by learned lower Appellate Court while accepting appeal of Respondents Nos. 1 to 6 (the descendants of original plaintiff), hence this petition.

1. Arguments heard and record scanned.

2. The case of petitioners/beneficiaries hinges upon unregistered memo. of gift alleging to have been executed to acknowledge oral gift. This Court with the able assistance of learned counsel for the parties has minutely gone through the said document and found it inadequate to demonstrate the happening of original transaction. The said dearth in order to explore time, date, venue and names of the witnesses was again found in the written statement submitted on behalf of the petitioners. No doubt, Exh.D1 was constructed prior to promulgation of the Qanun-e-Shahadat Order, 1984, but even then it being a private document was to be proved by producing its signatories. Whereas, available record suggests that none out of its three attesting witnesses examined. The contention of learned counsel for the petitioners that out of them two had already died and the third one due to his serious illness was not produced, if is taken as true, even then to meet with the legal requirement, the copies of their death entries as well as some record to prove the factum of illness might be brought on suit file, besides to examine some persons familiar with their signatures in secondary evidence, which is completely lacking herein, thus for such count, the document (Exh.D1) was liable to be taken out of evidence. No doubt the Scribe (DW3) was summoned, who though tried to prove the construction of Exh.D1, but could not be treated at par with marginal witness, thus his deposition was not enough to prove contents of said document. Moreover, he was also not the witness of original transaction. It is well established that such like documents are not per se admissible in evidence, rather are required to be proved as per scheme of law. The emphasis that Exh.D1 was taken in evidence without any objection, which being document of more than thirty years old was not required to be proved as per threshold of the law is not well founded. The exhibition of document in evidence is one aspect, whereas the other is to prove its due execution and most important is to establish the ingredients of transaction referred therein. The Scribe (DW3) did not state that declaration of gift was pronounced or accepted before him. The DW1, who in no capacity was signatory of Exh.D1 also failed to demonstrate time and date about happening of original transaction. He even omitted to said that alleged offer was made or accepted by the donee in his presence. As such, weak and meager evidence was examined, which was not enough to deprive the legal heirs to claim their shari shares in the suit property.

4. The submission of learned counsel for respondents that Ehx.P1 having age more than 30 years attained presumption of its correctness within the meaning of Article 100 of the Qanun-e-Shahadat Order, 1984 and the conclusion drawn by the Civil Court to this effect was unexceptionable, is not well founded. The Exh.D1 was not a registered document, but merely scribed on plain paper and it was not essential for the Court to attach presumption of execution to a document more than 30 years old in all the cases without considering the other related facts of the case to draw such inference. On account of appreciation of evidence available on suit file, the presumption under discussion as to validity and execution of Exh.D1 would not apply. See Sabz Ali Khan & 7 others vs. Mst. Bibi Naik Zada and another (2020 CLC 1048), Liaqat Ali and 6 others vs. Muhmnmnd Akhtnr and 63 others (2020 YLR 1446) and Nazir Ahmed deceased through LRs vs. Karim Bakhsh (Late) through LRs (2017 SCMR 1934).

5. There is nothing on record, that property in dispute was under clog or there was any restraining order for its alienation, then why it was not permanently transferred by the donor through execution of registered gift deed. Moreover, the execution of present memo. of gift on a plain paper was sufficient to doubt its authenticity. It is very easy to manage such like document and in such situation, a high quality evidence is always required to rely thereupon, which is lacking here. It was again a drawback that after the execution of Exh.D1, the donor survived for more than two decades but neither it was brought in light in his life nor an effort was made for its registration. There is no doubt that record of Excise and Taxation Department, whatever it may be and the utility bills could not be made basis to constitute title. See Muhammad Zaman vs. Muhammad Jamil and 4 others (1992 CLC 873), Muhammad Ismail vs. Maqbool Ahmed and 8 others (2001 CLC 252), Muhammad Shafi vs. Syed Chan Pir Shah and 4 others (2018 CLC 866) and Muzaffar Khan vs. Sanchi Khan and another (2007 SCMR 181). The donor was even not produced before the said Department to make a statement for the endorsement of Exh.D1.

1. Thus mere execution of Exh.D1, which was even unregistered, definitely created no right, interest or title in the immoveable property until and unless attested in terms of Section 54 of the Registration Act, 1908 and in absence thereof the title of the property in question could not have been conferred upon predecessor of petitioners. See Allah Diwaya vs. Ghulam Fatima, represented by Ahmad Sher and others (PLD 2008 SC 73).

7. In the instant case, it is a gift, which tantamount to disinheriting the majority of legal heirs. In such circumstance when, through a gift, deprivation of some or either of legal heir is involved, the heavy onus to prove original transaction as well as reasons for doing so strongly rested upon the beneficiary of such gift. The apex Court has already nullified such like transaction in various judgments reported as Muhammad Ashraf vs. Bahadur Khan and others (1989 SCMR 1390), Barkat Ali through legal heirs and others vs. Muhammad Ismail through legal heirs and others (2002 SCMR 1938), Ghulam Haider vs. Ghulam Rasool and others (2003 SCMR 1829) and Muhammad Ajmal and others vs. The State and another (2018 SCMR 141).

1. When established that there was no gift and its deed (Ex:D-1) was unregistered and procured by practicing fraud, which vitiates even the most solemn transaction, as any deal based on fraud would be void and notwithstanding the bar of limitation, the matter can be considered on merit so as to discourage fraud besides to be

perpetuated, as such findings of the learned Appellate Court below on Issue No. 1 are affirmed as well.

9. The learned counsel for the petitioners badly failed to persuade that either the impugned judgment was result of material irregularity/patent illegality or tainted with misreading and non-reading of evidence or jurisdictional defect on the part of the learned Appellate Court to call for interference by this Court. The scope of interference in revisional jurisdiction by this Court is restricted and narrower, which is only meant for correcting errors of facts and law, if are found to have been committed by the subordinate Court in the discharge of its judicial functions. Hence, instant revision petition being devoid of any merit and force is dismissed. No order as to costs.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 309

Present: Mrs. Ayesha A. Malik, J.

GHANI GLOBAL GLASS LIMITED--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Energy (Power Division), Islamabad etc.--Respondents

W.P. No. 48379 of 2019, heard on 20.11.2019.

Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 (XL of 1997)--

----Ss. 7, 7(2)(i) & 31--National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998, Rr. 5, 9, 17 & 17(3)(i)--Constitution of Pakistan, 1973, Art. 199--Imposition of quarter tariff adjustment in electricity bills--Mandate of law--Tariff determination--Actual consumption of electricity--Entitlement for recovery of prudently incurred cost--Efficacious remedy--Principles for determination of revenue requirement--Public hearing for raising objections--Availability of remedy of appeal--Objection regarding composition of authority--Challenge to--NEPRA has issued Guidelines which provides for methodology to be adopted with reference to tariff determination--Objective of quarterly adjustment is to ensure that all pass through costs are factored into tariff as per requirement of Act and Rules--Distribution Companies does not have to bear these costs and is entitled to recover all prudently incurred costs--NEPRA determines consumer end tariff for each distribution licensee after assessing different components of its revenue requirements--There is a public hearing, which is duly published in newspapers inviting all comments, objections and interveners request--formulas and principals for determining revenue requirement is provided under Guidelines--Petitioners with reference to QTA is without basis as structure of Act read with Rules find Guidelines clearly provides for periodical adjustment of PPP components which have to be determined based on actual costs incurred--Petitioners should have participated in same and could should have raised their objections at time With respect to prudency of costs being claimed--Objections before High Court in constitutional jurisdiction is without basis as there is no vested right in favour of Petitioners which they seek to enforce nor is there any basis on which diey can claim that periodical adjustments are illegal or have been even given retrospective effect. periodical adjustments are in terms of prescribed procedure under scheme of Act, hence no illegality is made out--Furthermore, remedy of appeal is provided under Act, which was never availed by Petitioners--Petitioners, objection with respect to composition of authority and fact that at time they were only two members and one Vice Chairman, it is noted that this matter has already been decided by august. Supreme Court of Pakistan in hence no grievance is made out in this respect before this Court--Petition allowed.

[Pp. 316, 317 & 318] A, B, C, D, E & F

2016 SCMR 550 ref.

Mr. Ahmed Pervaiz, Mr. Muhammad Mohsin Virk, Mr. Muhammad Aslam Sheikh, Mr. Sher Baz Ali, Mr. Majid Jehangir, Mr. Khalil-ur-Rehman, Mr. Mustafa Kamal, Mr. Lisan Ullah Khan, Mian Muhammad Hussain Chotya, Malik Sohail Ashiq Shujra, Sheikh Muhammad Akhtar Shahzad, Rana Mehboob Alam Khan, Syed Najaf Hussain Shah, Sayyed Alamdar Hussain Naqvi, Mr. Imran Anjum Alvi, Mian Mahmood Rashid and Rubi Saleha, Malik Kashif Rafique Rajwana and Rabia Hassan, Mr. Arshad Nazir Mirza, Mr. H.M. Majid Siddiqui, Mr. Moiz Tariq, Rana Muhammad Arshad Khan, Rai Muhammad Azam Kharal, Mian Ali Akbar, Rana Ahmed Tayyab Shahid, Mr. S.M. Raheel, Mr. Sohail Javed Chughtai, Chaudhary Muhammad Ajmal Haq, Mr. Muhammad Irfan Liaqat, Mr. Muhammad Farooq Sheikh, Mr. Khaiid Gulzar, Rana Sajid Rasool, Chaudhary Asim Iqbal, Mr. Muhammad Abbas Nasir Chaudhary, Mr. Muhammad Umer Tariq Gill, Mr. Sajid Naseer Chaudhary, Rai Zameer-ul-Hassan, Mr. Muhammad Anas Aftab, Mr Mashood Iqbal, Mr. Ijaz Ahmad Awan, Mr. Muhammad Iqbal Akhtar, Syed Amjad Iqbal Hussain, Mr. Salman Afzal Malik, Mr. Muhammad Nawaz Sheikh, Mr. Sajjad Ahmad Jatoi, Mirza Bilal Zafar, Mr. Salman Ahmad Chaudhary, Mian Irfan Ahmad Sial, Mr. Ehsan Elahi Sheikh, Mr. Shoaib Yousaf Awan, Ch. Waqar Hassan, Mr. Muhammad Baqir Hussain, Rana Jamshed Khan, Mr. Nasrullah Sattar Pasha, Syed Habib Ullah, Mr. Jan Muhammad Chaudhary, Mr. Fawad Akram Sufi, Mian Waqas Khalid, Mr. Mudassar Shuja-ud-Din, Mr. Muhammad Qaiser Amin Rana, Mr. Jahanzaib Khan, Mr. Muhammad Saqib Sheikh, Mr. Khalid Nawaz Ghumman, Mr. Shehzad Riaz Chattha, Mr. Hassan Jalees Tarar, Chaudhary Habib-ur-Rehman, Mr. Tahir Attique Piracha, Mr. Mubashar Hassan Sheikh, Mr. Naveed Anwar Chohan, Rana Mushtaq Ahmad Toor, Mr. Shaukat Ali Tanweer, Mian Tariq Mahmood, Mr. Hashim Aslam Butt, Mr. Adnan Ahmad, Mr. Tahir Mahmood Mughal, Malik Saqib Karim, Mr. Iftikhar Gull Khan, Mr. Muhammad Siddique Butt, Chaudhary Imtiaz Ullah Khan, Malik Muhammad Ashfaq, Mr. Arslan Arshad, Mian Masroor Ahmad, Mr. Ghulam Farid-ud-Din, Mr. Faisal Ghafoor Khokhar, Mirza Khurram Baig, Mr. Shahid Abrar Basra, Ch. Shafqat Ali Sulehria, Mr. Faisal Hanif Khokhar, Mr. Uzman Umar Khokhar, Mr. Shahid Shaukat Chaudhary, Mr. Adnan Qamar Malik, Mr. Adil Naeem Sheikh, Mr. Asif Hayat Khattak, Chaudhary Yasir Ali, Rana Shafqat Hussain, Mr. Abdul Sami Qureshi, Syed Muhammad Ghazanfar, Mr. Nadeem Hussain, Mr. Amir Hussain, Chaudhary Muhammad Awais Kamboh, Rai Tanveer Arshad Khan, Chaudhary Farid Anwar, Mr. Shakeel Ahmad Basra, Mr. Shaukat Ali Tanveer Mr. Muhammad Ramzan Chaudhary, Mr. Zabi Ullah Nagra, Mr. Asif Amin, Mr. Muhammad Rashid, Chaudhary Mumtaz ul Hassan, Malik Bashir Ahmad Khalid, Advocates for Petitioners

Ms. Ambreen Moeen, DAG.

Mr. Muhammad Shafique and Mr. Umer Sharif, Advocates for NEPRA. Mr. Muhammad Shoaib Rashid.

Mr. Furqan Naveed and Ms. Manahil Khan, Advocates for LESCO. Mian Muhammad Mudassar Bodla, Advocate for LESCO.

Sheikh Muhammad Ali, Advocate for FESCO along with Rana Muhammad Rafique, Chief Financial Officer, FESCO, M. Ismail Khalid, SDO and Ayaz Haider, Revenue Officer, FESCO.

Raja Akhtar Nawaz, Advocate for FESCO.

Malik Asad, Advocate for FESGO.

Mian Ashiq Ali, Advocate for Respondent FESCO.

Chaudhary Fiaz Ahmad Sanghaira, Advocate for LESCO.

Chaudhary lmtiaz Elahi, Advocate for Respondent FBR.

Mr. Shahid Sarwar Chahil, Advocate for Respondent FBR.

Mr. Raza Bashir, Advocate for Chairman, WAPDA.

Mr. Aurangzeb Mirza, Advocate for Respondent GEPCO and FESCO.

Date of hearing: 20.11.2019.

Judgment

This judgment decides upon the issues raised in the instant Petition as well as connected Petitions detailed in Schedule “A” as all Petitions raise common questions of law and facts.

1. The Petitioners have challenged the imposition of quarter tariff adjustment ("QTA") in the electricity bills issued by the relevant distribution company, who are the Respondents in these petitions. The Petitioners have also challenged the decision dated 14.6.2019 issued by the National Electric Power Regulatory Authority ("NEPRA") and the Notification dated 28.6.2019 issued by the Federal Government.

2. The basic relief sought for by the Petitioners is that the Respondents be restrained from recovering QTA on the consumption of electricity through their electricity bills. The Petitioners before the Court are all consumers of electricity who are aggrieved by the imposition of QTA in their bills on the basis of which the tariff has been adjusted retrospectively. Learned counsel for the Petitioners argued that as per the billing mechanism, the distribution company, on the basis of the monthly readings, issues bills to consumers in accordance with the tariff notified by the Federal Government. Once the bill is paid, it becomes a past and closed transaction as the Petitioners have paid the bill along with all relevant taxes and on the basis thereof have built that payment into their costs for the purposes of their business. Furthermore once the bill has been paid, there is no justification to seek any adjustment against a paid bill nor does the law provide for the same.

3. Learned counsel further argued that the tariff was first determined on 8.3.2016 being a multi year consumer end tariff for the years 2015 to 2020. Against this tariff, LESCO filed a motion leave to review which was dismissed by NEPRA. vide order dated 19.5.2016. The Federal Government made a request to reconsider the tariff which was also dismissed on 1.7.2016 by NEPRA. The Respondent distribution companies approached the Hon'ble Islamabad High Court through various different petitions, consequent to which the matter was remanded to NEPRA to re-determine the tariff for the financial years 2015-16 to 2019-20. On 23.10.2017 NEPRA on its own made some adjustments, to the tariff for the financial year 2016-17 and for the first time notification for the financial years 2015-16 and 2016-17 was issued on 22.3.2018. In the meantime on 27.4.2018, Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 ("the Act") was amended, such that several amendments were made to Section 31 of the Act of which Section 31(4) is relevant for the purposes of the dispute before the Court. The Federal Government made a request before NEPRA for making uniform tariff and NEPRA issued its decision on 19.12.2018 for the financial years 2016-17 and 2017-18. This was notified on 1.1.2019. On 14.6.2019 NEPRA made its second decision whereby adjustments were made in the tariff that had already been notified on 1.1.2019. These adjustments were notified on 28.6.2019 after following the requirements of law for public notices and calling for objections. Learned counsel further argued that all adjustments made are in violation of Section 31(2)(a), 31(2)(c), 31(3)(a)and 31(3)(d) of the Act. Learned counsel further argued that the decision was taken by only three members of NEPRA without any Chairman, which is against law. Reliance is placed on "Sh. Rahmatullah v. The Deputy Settlement Commissioner, Centre, 'A' Karachi and others " (PLD 1963 SC 633), "Sheikh Fazal Ahmad v. Raja Ziaullah Khan and another" (PLD 1964 SC 494), "Islamic Republic of Pakistan through the Secretary, Ministry of Commerce and Local Government (Commerce Division), Islamabad" (1977 SCMR 509), Imtiaz Ahmad and others v. Punjab Public Service Commission through Secretary, Lahore and others" (PLD 2006 SC 472), "Province of Punjab through Secretary to the Government v. Dr. Muhammad Zafar Iqbal and 10 others" (2018 PLC (C.S) 152) and "Syeda Shazia Irshad Bokhari v. Government of Punjab through Secretary Health and another" (PLD 2005 Lahore 428).

4. Report and parawise comments have been field by the Respondent LESCO. Learned counsel for the LESCO stated that the Respondents are Distribution Licensees who filed petitions before NEPRA for determination of consumer end tariff in accordance with the National Electric Power Regulatory Authority (Tariff Standards and Procedure) Rules, 1998 ("1998 Rules"). A public hearing is always given when adjustments are made and any member of the public can raise objections at the hearing. Quarterly adjustments are made on account of the variations in the components of the Power Purchase Price ("PPP") which includes transmission and distribution losses amongst other components. LESCO challenged the determination made on 8.3.2016 and ultimately the matter went to the Hon'ble Islamabad High Court wherein the issue of tariff determination was remanded to NEPRA in terms of the judgment cited at Lahore Electric Supply Company Limited (LESCO) and others v. National Electric Power Regulatory Authority and others (PLD 2018 Islamabad 20). Learned counsel argued that NEPRA issued the tariff and made all adjustments as per the rules; that it has not violated any provision of the Act, the Rules or the National Electric Power Regulatory Authority Guidelines for Determination of Consumer End Tariff (Methodology and Process) 2015 ("the Guidelines") and that in fact this issue has been decided several times all the way up to the august Supreme Court of Pakistan. Learned counsel further stated that the Petitioners have no vested right to challenge the tariff. He argued that a public hearing is given and any objection that the Petitioners have to the prudency of the costs should be raised at that time and that such matter cannot be challenged in Constitutional petition. Learned counsel places reliance on ICC Textiles Limited through Authorized Representative and 31 others v. Water and Power Development Authority (WAPDA), WAPDA House, Lahore through Chairman and 15 others (2009 CLC 1343), Flying Board and Paper Products Ltd. and others v. Government of Pakistan through Secretary Cabinet Division and others (2010 SCMR 517) and in WP No. 25437/2015 titled Hameed Steel etc. v. LESCO etc. vide order dated 2.9.2015. He further clarified that essentially QTA has always been made, however, it is for the first time that this has been depicted in a separate box in the bill in terms of the requirements stipulated in the Notification dated 28.6.2019 issued by the Ministry of Energy (Power Division), Islamabad. On the issue of the number of the members who can take a decision with respect to tariff he stated that the matter in issue stands decided by the august Supreme Court of Pakistan in "National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited" (2016 SCMR 550) hence this objection cannot be raised before this Court.

5. Report and parawise comments have also been filed by the Respondent NEPRA. Learned counsel for the Respondent NEPRA argued that NEPRA is statutory body established under the Act for the regulation of provision of electric power service in Pakistan. In terms of the Act, NEPRA is responsible for the determination of tariff. Every distribution licensee files a petition before NEPRA seeking determination of consumer end tariff in accordance with the provision of the 1998 Rules. The salient features of the petitions are published in the newspaper inviting comments, objections and interveners and a public hearing is granted. Subsequently, the tariff determination is made by NEPRA. In the case before the Court a multiyear consumer end tariff was determined for LESCO for a period of five years from 2015 to 2020. Essentially the determination was made on 08.08.2016, after carrying out a public hearing, however, LESCO was aggrieved by this determination, hence it filed a motion for leave for review, which was decided by NEPRA on 19.05.2016. Subsequently, reconsideration request was filed by the Federal Government, which was decided on 01.07.2016. LESCO being aggrieved filed a petition before the Hon'ble Islamabad High Court, Islamabad, which ultimately remanded the matter to NEPRA for reconsideration in terms of PLD 2018 Islamabad 20 (supra). Learned counsel stated that tariff methodology for determining PPP and quarterly adjustment are provided for in the Guidelines. The consumer end tariff is determined to ensure recovery of the revenue requirements of the distribution company in accordance with the Act and 1998 Rules. The Petitioners before the Court had efficacious remedy available to them under the Act in the form of an appeal, which remedy has not been availed by them. Furthermore, they can always participate in the public hearing if they have any objection or comments with respect to the quarterly adjustment. However, the contention that the quarterly adjustments are against the mandate of the law or that they are applied retrospectively is totally without basis as it is part of the mechanism for tariff determination which is prescribed under the law and which has been followed by NEPRA regularly. He explained that quarterly adjustment can only be made after the actual consumption of electricity, hence the Guidelines prescribes for adjustment to be made at end of each quarter, once the actual figures are available. With respect to the arguments made on the composition of NEPRA and the fact that only three members were available at the time when the decision was taken, learned counsel stated that the matter in issue has already been decided by the august Supreme Court of Pakistan in 2016 SCMR 550 (supra), hence the said issue cannot be raised again before this Court.

6. Report and parawise comments have also been filed by the Respondent FESCO, GEPCO and IESCO. They have adopted the arguments raised by the learned counsel for the Respondent LESCO and NEPRA. On behalf of Federal Government, learned Deputy Attorney General for Pakistan also adopts the arguments made on behalf of NEPRA.

7. Heard and record perused. The impugned decision dated 14.06.2019 by NEPRA is related to the periodical adjustment in Tariff for the 1st and 2nd Quarters of the FY 2017-18. As per the decision, XWDISCOs filed their quarterly adjustment request on account of the variation in the PPP, which includes the impact of transmission and distribution losses for the first and second quarters being July to September, 2018 and October to September, 2018. A public hearing was held on 13.03.2019 and subsequently NEPRA gave due consideration to the comments, objections and interveners. A decision was made on 14.06.2019, which was communicated to the Federal Government for notifying in the official Gazette. The Petitioners are aggrieved by this decision on the ground that it is not in accordance with the Act; that it'has retrospective effect and that the NEPRA was not duly constituted at the time. They rely on Section 31 of the Act to urge their point of illegality and being against the mandate of the law.

8. The basic frame work of the law for tariff determination falls under the Act. Section 7 provides for the powers and functions of the Authority, wherein Section 7(2)(i) prescribes that the Authority shall issue guidelines and standard operating procedures for tariff determination. Section 7(3)(a) prescribes that NEPRA shall determine tariff, rates, charges and other terms and conditions for supply of electric power service by the generation, transmission, and distribution companies and recommend to the Federal Government for its notification. Section 31 provides that the Authority shall in the determination, modification or revision of rates, charges and terms and conditions for the provision of electric power service be guided by the national electricity policy, the national electricity plan and such guidelines as may be issued by the Federal Government in order to give effect to the national electricity policy and national electricity plan. In terms of Section 31(3) the general guidelines applicable for tariff determination have been provided in which it is stated that tariff should allow the licensees the recovery of any and all cost prudently incurred to meet the demonstrated needs of their customers. Section 31(4) provides that NEPRA shall determine a uniform tariff for distribution licensees on the basis of their consolidated accounts. Once the tariff has been approved, it has to be notified by the Federal Government in the official Gazette under Section 31(7). The Act also provides for an appeal under Section 12G against any decision or order of the Authority and the quorum of the Appellate Tribunal is in terms of Section 12E. The 1998 Rules prescribes for the procedure to be followed by the Distribution Licensees when filing its tariff petitions such that Rule 5 of the 1998 Rules requires publication and service of notices for a public hearing and in terms of Rule 9 the hearing is given by the Authority. Rule 17 of the 1998 Rules provide for the standards and guidelines on the basis of which tariff shall be determined and again in terms of Rule 17 (3)(i) of the 1998 Rules tariff should allow licensees the recovery of any and all costs prudently incurred to meet the demonstrated needs of their customers.

10. In exercise of power under Section 7(2)(i) of the Act, NEPRA has issued Guidelines which provides for the methodology to be adopted with reference to tariff determination. In terms of Guideline 49 quarterly and bi-annual PPP adjustments are prescribed with reference to the PPP components being adjustments pertaining to the capacity and transmission charges, the impact of T&D losses and adjustment of variable O&M. Each component of the PPP is provided for in the revenue requirement of the distribution licensees on the basis of projected figures which are subject to adjustment as per actual figures as it is a pass through item. Also since there is a requirement for a uniform consumer and tariff at a national level, this is determined by NEPRA and notified by the Federal Government. The XWDISCOs file their adjustment requests on account of PPP variation in terms thereof. That objective of quarterly adjustment is to ensure that all pass through costs are factored into the tariff as per the requirement of the Act and 1998 Rules. The Distribution Companies does not have to bear these costs and is entitled to recover all prudently incurred costs. Hence the requirement of quarterly or bi-annual adjustment. It is noted that as per the Guidelines only fuel adjustment is made on a monthly basis.

11. NEPRA determines tariff as per Section 31 of the Act after a distribution licensees file the petitions as per the 1998 Rules and the Guidelines. NEPRA determines the consumer end tariff for each distribution licensee after assessing the different components of its revenue requirements. In this context, there is a public hearing, which is duly published in the newspapers inviting all comments, objections and interveners request. The formulas and principals for determining the revenue requirement is provided under the Guidelines. The Guideline prescribes for quarterly adjustment of capacity and transmission charges, the impact of transmission and distribution losses and the adjustment of variable Q&M. As per the Guidelines, fuel adjustment is made on a monthly basis whereas the costs, charges and losses are made on a quarterly basis. This is necessitated because every tariff determination is based on presumptive figures at the beginning of the financial year, which figures have to be actualized on the basis of actual data. This exercise is carried out periodically on a quarterly basis after holding a public hearing. In this way every tariff determination is for a fixed period and every quarterly adjustment is also for a fixed quarter. Hence QTA is as per the prescribed methodology and falls within the frame work of the Act. These are technical issues, based on projections and data for which NEPRA has laid out a transparent and comprehensive procedure, which should be followed. Therefore, the contention of the Petitioners with reference to QTA is without basis as the structure of the Act read with 1998 Rules and the Guidelines clearly provides for periodical adjustment of the PPP components which have to be determined based on actual costs incurred.

1. Consequent to the decision given by the Hon'ble Islamabad High Court, PLD 2018 Islamabad 20 (supra), NEPRA set out to re-determine the tariff for the FY 2015-16 which included costs and adjustments pertaining to the entire financial year. A public hearing was held for the benefit of all stakeholders and the prudency of all costs claimed for that quarter were duly considered. At the time, NEPRA decided to include the impact of the component of the PPP for the entire FY 2015-16 as considerable period had lapsed from when tariff was earlier determined and when the matter was remanded to NEPRAvide the decision of the Hon'ble Islamabad High Court. Since

there was a public hearing, the Petitioners should have participated in the same and could should have raised their objections at the time with respect to the prudency of the costs being claimed. At this stage, raising these objections before this Court in Constitutional jurisdiction is without basis as there is no vested right in favour of the Petitioners which they seek to enforce nor is there any basis on which they can claim that the periodical adjustments are illegal or have been even given retrospective effect. The periodical adjustments are in terms of the prescribed procedure under the scheme of the Act, hence no illegality is made out. Furthermore, remedy of appeal is provided under the Act, which was never availed by the Petitioners.

13. So far as the Petitioners, objection with respect to the composition of the authority and the fact that at the time they were only two members and one Vice Chairman, it is noted that this matter has already been decided by the august. Supreme Court of Pakistan in "National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited" (2016 SCMR 550), hence no grievance is made out in this respect before this Court.

1. In view of the aforesaid, this petition as well as all connected petitions are dismissed. At this stage learned counsel for the Petitioners requested that in the event that their prayer is not accepted by the Court, NEPRA should be directed to make installments for the sake of payment of QTA. It is observed that in this regard any request for installment should be raised before NEPRA or the Distribution Companies.

(Y.A.) Petition allowed

PLJ 2021 Lahore 318

Present: Masud Abid Naqvi, J.

SHOUKAT ALI etc.--Petitioners

Versus

MUHAMMAD ANWAR etc.--Respondents

W.P. No. 9438 of 2016, decided on 16.11.2020.

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

----S. 12(2)--Specific Relief Act, (I of 1877), Ss. 9, 42 & 54--Constitution of Pakistan, 1973, Art. 199--Suit for declaration possession and permanent injunction--Joint statement--Compromise--Request for withdrawal of suit--Dismissed as withdrawn--Application for setting aside--Consenting order--Allegation of fraud on part of respondents--Authority of judicial record--Challenge to--Neither deceased challenged order in his lifetime nor plaintiff has challenged said order--Petitioners failed to substantiate alleviation of fraud on part of respondents/defendants--Mere allegation not supported by any material would not invariably warrant inquiry or investigation--Authenticity of judicial record cannot be doubted without any solid proof and only on oral arguments--Petitioners has not been able to point out any plausible ground due to which he is seeking setting aside of impugned orders, hence, they are not entitled to any relief--No infirmity, legal or factual, has been pointed out in impugned orders, requiring interference--Petition dismissed.

[Pp. 319 & 320] A, B, C & D

2004 SCMR 843 ref.

Mr. Athar Ali Bhinder, Advocate for Petitioners.

Ch. Muhammad Rafique Gujjar, Advocate for Respondents No. 1, 2, 3 and 5.

Date of hearing: 16.11.2020.

Order

Brief facts of this writ petition are that plaintiffs/predecessor in interest of present petitioners filed suit for declaration, possession and permanent injunction wherein respondents/ defendants entered appearance and in presence of respondents/defendants, all the three plaintiffs got recorded their joint statement on 16.06.2009 to the effect that compromise has been effected between the parties and they requested for withdrawal of the suit, whereupon the suit was dismissed as withdrawnvide order dated 16.06.2009. Thereafter on 23.04.2010 the petitioners No. 2 to 9/legal heirs of plaintiffs No. 1 and Petitioner No. 1 Defendant No. 2 filed an application under Section 12(2), CPC for setting aside consenting order dated 16.06.2009 and the Same was dismissed vide order dated 13.02.2014, Feeling aggrieved, civil revision challenging the said order was filed and the same was also dismissed vide order dated 25.01.2016. Being dissatisfied, instant writ petition has been filed by challenging the said orders.

1. I have heard the arguments advanced by the learned counsel for the petitioners/legal heirs of Plaintiffs No. 1 & 2 and perused the record.

3. Perusal of record reveals that only legal heirs of Taj Din/Plaintiff No. 1 and Shaukat Ali/Plaintiff No. 2 have challenged the order dated 16.06.2009 by filing an application under sections 12(2), CPC dated 27.04.2010 while neither Taj Din deceased challenged the order dated 16.06.2009 in his lifetime nor Muhammad Younas/Plaintiff No. 3 has challenged the said order. All the plaintiffs namely Taj Din/ Plaintiff No. 1, Shaukat Ali/Plaintiff No. 2 and Muhammad Younas/ Plaintiff No. 3 appeared before the trial Court on 16.09.2009 and unconditionally withdrew the suit by recording their joint statement and putting their thumb impressions on the order sheet due to compromise while affidavit of Taj Din/Plaintiff No. 1 was also placed on record as Mark-1. This fact is very much clear from order sheet of trial Court which bears signature and thumb impressions of the plaintiffs. No details of compromise are mentioned for withdrawal of that suit either in the recorded joint statement or in the affidavit filed by Plaintiff No. 1/Taj Din. The petitioners failed to substantiate the allegation of fraud on the part of the respondents/defendants. Mere allegation not supported by any material would not invariably warrant inquiry or investigation. All these abovementioned facts negate the claim/ground as written in application for setting aside the impugned orders. Therefore, plea being raised by the petitioners at this stage has no force. Learned counsel for the petitioners failed to satisfy the judicial conscious of the Court as presumption of truth is attached to the record of the Court under Article 129 (e) of the Qanun-e-Shahadat Order, 1984 and Article 150 of the Constitution of Islamic Republic of Pakistan, 1973. Authenticity of the judicial record cannot be doubted without any solid proof and only on the oral arguments of the learned counsel. Learned counsel for petitioners has not been able to point out any plausible ground due to which he is seeking setting aside of the impugned orders, hence, they are not entitled to any relief. The case law relied on by learned counsel for the petitioners reported as Muhammad Aslam and others vs Mst. Kundan Mai and others (2004 SCMR 843) is concerned, the same is distinguishable from the facts of the present case.

4. In view of the foregoing discussion, this Court is of the considered view that the impugned orders have been passed after properly evaluating the facts of the case and keeping in view the settled law. No infirmity, legal or factual, has been pointed out in the impugned orders, requiring interference, therefore, this writ petition is dismissed.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 321

Present: Ali Akbar Qureshi, J.

FAZAL AMEER--Appellant

Versus

MUHAMMAD AMEER, etc.--Respondents

R.S.A. No. 137 of 2015, heard on 25.6.2015.

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

----Ss. 12 & 42--Suit for specific performance alongwith declaration, Dismissed--Agreement to sell--Denial of transaction--Non-proving of sale agreement by appellant--Non-producing of marginal witnesses of sale agreement--Matter was referred to arbitrator--Announcement of award--Award was also made rule of Court--Consenting written statement was submitted by respondents--Concurrent findings--Challenge to--Appellant has failed to produce other marginal witness of agreement to sell that agreement to sell and appointment of arbitrator to resolve controversy qua suit land between appellant and predecessor of respondents, is of same day--Appellant and predecessor of respondents, as claimed by appellant, entered into agreement of sale through a written agreement and on same day, matter was referred to an arbitrator with consent of parties--Subsequently, arbitrator announced award, which was also made rule of Court--When such part of record was confronted to appellant, could not refer anything from record to show difference arose on same day and mailer was referred for arbitration--Appellant has miserably failed to prove agreement to sell by producing two marginal witnesses and there is no justification apparently appearing from record that why matter was referred to an arbitrator--Appeal dismissed. [Pp. 323 & 324] A, B, C & D

2014 SCMR 161, 2014 SCMR 1469, 2012 SCMR 1373, 2010 SCMR 984, 2008 SCMR 428 & 2008 SCMR 452 ref.

Mr. Zabi Ullah Nagra, Advocate, for Appellant.

Nemo for Respondents.

Date of hearing: 25.6.2015.

Judgment

This Regular Second Appeal is directed against the judgments and decree dated 31.10.2011 and 16.05.2015, whereby the suit for specific performance of contract/declaration alon gwith consequential relief filed by the appellant was dismissed.

1. The facts necessary for the disposal of this appeal are that, that the appellant/plaintiff filed a suit for specific performance of a contract, along with declaration alleging therein that Muhammad Akram son of Jalal Khan real brother of the appellant, who was owner of 75-Kanals (suit land) out of 224-Kanals. 15-Marlas to the extent of his shares 1/3, entered into an agreement to sell with the appellant regarding nil property for a consideration of Rs. 12,00,000/-, a receipt to this effect was also executed. Further alleged in the suit, that the predecessor of the respondents received whole consideration of the sale and handed over the possession of the suit land to the appellant, therefore, since then, the appellant is enjoying the possessory and proprietary rights of the suit property. Lastly contended, that after the death of Muhammad Akram his heirs were time and again asked to register the sale deed in favour of the appellant but they instead of exceeding the legal demand of the appellant, got entered the inheritance, mutation on 09.09.1999 in their favour and on the basis of said mutation, the. transfer of suit land by way of Mutation No. 564 dated 28.02.2006 in favour of Ameer Ali Khan is product of fraud, fabrication and collusion, therefore, liable to be declared illegal, unlawful and without lawful authority.

Suit was contested by Respondents No. 1 to 3 by filing their written statement wherein they denied the averments made in the plaint and also denied the transaction by deceased Muhammad Akram in favour of the appellant. It was also mentioned in the written statement, that the appellant who is real paternal uncle of the respondents, has fabricated this agreement to sell just to deprive the respondents from their inherited property.

The respondents/Defendants No. 4 to 6 submitted a consenting written statement and stated, that they would have no objection if the suit is decreed in favour of the appellant.

1. The learned trial Court out of the controversial pleadings, framed as many as nine issues, recorded the evidence of the parties, and after hearing the arguments, dismissed the suit. Being aggrieved thereof, the appellant preferred an appeal which too was dismissed. Hence, this Regular Second Appeal.

2. Learned counsel for the appellant mainly argued, that there is a written contract which is supported by a receipt, therefore, it is sufficient to prove, that the appellant and the predecessor of the respondents entered into an agreement and the total sale consideration was received by the predecessor of the respondents. Further contended, that the learned’ Courts below on the baseless and flimsy ground, non-suited the appellant, therefore, the concurrent finding is against the record and the law applicable on the case.

3. Heard. Record perused.

6. It is not denied by the learned counsel for the appellant, that the real brother of the appellant, namely, Muhammad Akram died issueless and the inheritance mutation was entered in the name of the respondents who are legal heirs of the deceased Muhammad Akram; that the appellant has failed to produce the other marginal witness of the agreement to sell; that the agreement to sell and the appointment of the arbitrator to resolve the controversy qua the suit land between the appellant and the predecessor of the respondents, namely, Muhammad Akram is of the same day.

7. It looks very ridiculous, that the appellant and the predecessor of the respondents, as claimed by the appellant, entered into agreement of sale through a written agreement dated 13.06.1998 and on the same day, the matter was referred to an arbitrator with the consent of the parties. Subsequently, arbitrator announced the award which was also made rule of the Court. When this part of the record was confronted to learned counsel for the appellant, the learned counsel could not refer anything from the record to show the difference arose on the same clay and the matter was referred for arbitration.

8. The appellant as appears from the record, could not produce the other marginal witnesses of the agreement to sell, therefore, the learned Courts below rightly concluded, that the appellant has miserably failed to prove the agreement to sell by producing two marginal witnesses and there is no justification apparently appearing from the record that why the matter was referred to an arbitrator.

1. The Hon'ble Superior Court in plethora of judgments has held, that the concurrent findings on facts and law should not be interfered in routine but in a case where the glaring illegality has been committed by the learned Courts below, while in this case no such illegality, irregularity or jurisdictional defect has been pointed out.

I find support from the valuable judgments of the Hon'ble Supreme Court of Pakistan, titled "Cantonment Board through Executive Officer Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), Noor Muhammad and others v. Mst, Azmat-e-Bibi(2012 SCMR 1373), Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others (2010 SCMR 984), Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another (2008 SCMR 428), and "Abdul Ghafoor and others v. Kallu and others (2008 SCMR 452)", that the High Court, in the case of concurrent findings, normally does not interfere unless the same is result of exercise of jurisdiction not vested in the learned Courts below.

10. In view of the above, I see no reason to interfere with the concurrent findings rendered by the learned Courts below. Resultantly, this Regular Second Appeal is dismissed with no order as to costs.

(Y.A.) Appeal dismissed

PLJ 2021 Lahore 324

Present: Masud Abid Naqvi, J.

RAI SARFRAZ etc.--Petitioners

versus

ATTA MUHAMMAD etc.--Respondents

C.R. No. 9104 of 2019, decided on 19.12.2019.

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

----S. 42--Civil Procedure Code, (V of 1908), S. 115--Suit for declaration--Dismissed--Framing of issues after recording of oral evidence of parties and exhibitasion of documents--Duty of judge--Material irregularity--Issues were framed by trial Court after recording of oral evidence of contesting parties and after exhibiting documents produced by both sides and after completion of evidence of parties--It is settled law that it is duty of a judge himself to frame proper issues on first stage of a suit so that parties may know controversy--Hence, trial Court's failure to frame issues before recording of evidence and exhibiting of documents, petitioners/ plaintiffs are seriously prejudiced and it is material irregularity which has affected merits of case--Court also failed to appreciate such material irregularity and maintained judgment and decree of trial Court by dismissing appeal--Hence, impugned judgments and decrees passed by Courts below are not sustainable in eye of law--Petition accepted. [P. 325] A, B & C

Mr. Athar Ali Bhinder, Advocate for Petitioners.

MianAman Ullah Khan, Advocate for Respondents.

Date of hearing: 19.12.2019.

Order

Briefly stated facts of this civil revision are that petitioners/ plaintiffs filed suit for declaration wherein written statement was filed on 19.10.2014 and thereafter plaintiffs/petitioners completed their evidence on 17.11.2017 and defendants/respondents completed their evidence on 19.01.2018 while the issues were framed by the learned trial Court on 16.02.2018 and the suit was dismissed on the same date. Feeling aggrieved, the petitioners/plaintiffs filed an appeal and the same was also dismissed vide judgment and decree dated 22.01.2019. Being dissatisfied, the petitioners/ plaintiffs have filed the instant Revision Petition and challenged the validity of the judgments and decrees passed by the learned Courts below.

1. I have heard the learned counsel for the parties and perused the available record as well as have minutely gone through the impugned judgments and decrees.

3. On query, learned counsels for the contesting parties agreed that issues were framed by the learned trial Court 16.02.2018 after recording of oral evidence of the contesting parties and after exhibiting the documents produced by both sides and after completion of evidence of the parties. It is settled law that it is duty of a judge himself to frame proper issues on the first stage of a suit so that parties may know the controversy, the disputed facts on which evidence is to be led and to enable an effective judgment to be rendered because the object of framing of issues is to ascertain real dispute between the parties by narrowing down an area of conflicting and determining where the parties differ because parties are required to prove issues and not the pleadings generally, while the Court is bound to give decision on each issue framed and not to decide the matter on which no issue has been framed. Hence, the learned trial Court's failure to frame the issues before the recording of evidence and exhibiting of documents, the petitioners/plaintiffs are seriously prejudiced and it is material irregularity which has affected merits of the case. Learned appellate Court also failed to appreciate this material irregularity and maintained the judgment and decree of the trial Court by dismissing the appeal. Hence, the impugned judgments and decrees passed by the learned Courts below are not sustainable in the eye of law.

1. In view of the above discussion, without discussing the merits of the case, this civil revision is accepted and the impugned judgments and decrees of the learned Courts below are set-aside and the lis is remanded back to the learned trial Court for decision afresh after framing of issues and by allowing the parties to produce their respective oral evidence and documentary evidence. The evidence already recorded by the contesting parties is also discarded. The parties are directed to appear before the learned Additional District Judge, Tehsil Lalian, District Chiniot on 30.01.2020, who will entrust the matter to a Court of competent jurisdiction for adjudication.

(Y.A.) Revision petition accepted

PLJ 2021 Lahore 326

Present: Ch. Muhammad Iqbal, J.

FARHAT NAZ--Applicant

versus

ADNAN RAZA RAJA etc.--Respondents

T.A. No. 2899 of 2020, decided on 15.12.2020.

Family Court Act, 1964 (XXXV of 1964)--

----Ss. 24(a) r/w 25-A--Application for transfer of suits--Inconvenience for applicant--Right to institution of suit--Safety of life--Conflicting judgments--It will be convenient for applicant lady to travel in order to pursue matters--Rule 6 of Family Courts Rules, 1965 provides her right to institute suit within local limits of Court where she ordinarily resides and it is for her convenience and safety of life as well as in order to avoid conflicting judgments, matters should be heard at place was where she ordinarily resides--Application allowed. [P. 327] A

PLD 2016 SC 613 and PLD 2012 SC 66 ref.

Mr. Mushtaq Ahmed Dhoon, Advocate for Applicant.

M/s. Ch. Tariq Mahmood & Arshad Kamboh, Advocates for Respondent No. 1.

Respondent No. 2 proceeded against ex-parte vide order dated 17.02.2020.

Date of hearing: 15.12.2020.

Order

Brief facts of the instant transfer application filed under Section 24(a) read with Section 25-A of the Muslim Family Court Act, 1964 are that the applicant filed suit for recovery of maintenance and dowry articles against Respondent No. 1 titled "Farhat Naz etc. vs. Adnan Raza Raja", which is pending before the learned Judge Family Court Rawalpindi. The applicant also filed suit permanent injunction against the Respondent No. 1 titled "Mst. Farhat Naz vs. Adnan Raza Raja", which is pending before the learned Civil Judge, Rawalpindi. On the other hand the Respondent No. 1 filed a petition under Section 25 of the Guardian and Wards Act against the applicant "titled Adnan Raza Raja vs. Farhat Naz" which is pending before the learned Judge Family Court, Rawalpindi. Mst. Ambreen Zulfiqar (second wife of Respondent No. 1) also filed suit for recovery of damages against the applicant titled "Ambreen Zulfiqar vs. Mst. Farhat Naz" which is pending before the learned Civil Judge, Rawalipindi. Respondent No. 1 also filed suit for recovery of price of laptop of Rs. 1,90,000/- against the applicant titled "Adnan Raza Raja vs. Farhat Naz" which is pending before the learned Civil Judge, Sarai Alamgir District Gujrat and lastly Respondent No. 2 filed suit for recovery of damages for defamation against the applicant titled "Mst. Ayesha Sadaf Raja vs. Mst. Farat Naz" which is pending before the learned Addl. District Judge, Sarai Alamgir District Gujrat. The applicant through the instant application sought transfer of the matters pending at Sarai Alamgir to Rawalpindi where the applicant is presently residing.

1. I have heard the learned counsels for the parties and gone through the record with their able assistance.

3. Admittedly the suit for recovery of maintenance and recovery of dowry articles titled "Farhat Naz etc. vs. Adnan Raza Raja" and suit permanent injunction titled "Mst. Farhat Naz vs. Adnan Raza Raja" are pending before the learned Civil Judge/ Judge Family Court at Rawalpindi. The petition under Section 25 of the Guardian and Wards Act filed by Respondent No. 1 "titled Adnan Raza Raja vs. Farhat Naz" and suit for recovery of damages filed by Mst. Ambreen Zulfiqar (second wife of Respondent No. 1) against the applicant titled "Ambreen Zulfiqar vs. Mst. Farhat Naz" are also pending before the learned Guardian Judge/Civil Judge at Rawalpindi. Whereas suit for recovery of price of laptop of Rs. 1,90,000/- filed by Respondent No. 1 against the applicant titled "Adnan Raza Raja vs. Farhat Naz" is pending before the learned Civil Judge, Sarai Alamgir District Gujrat and suit for recovery for defamation filed by Respondent No. 2 against the applicant titled "Mst. Ayesha Sadaf Raja vs. Mst. Farat Naz" is pending before the learned Addl. District Judge, Sarai Alamgir District Gujrat. The applicant is presently residing at Rawalpindi. It will be in convenient for the applicant lady to travel from Rawalpindi to Sarai Alamgir District Gujrat in order to pursue the matters. Furthermore Rule 6 of the West Pakistan Family Courts Rules, 1965 provides her right to institute suit within local limits of the Court where she ordinarily resides and it is for her convenience and safety of life as well as in order to avoid conflicting judgments, the matters should be heard at the place (Rawalpindi) where she ordinarily resides. Reliance is placed on the cases titled as Mst. Yasmeen Bibi v. Muhammad Ghazanfar Khan and Others (PLD 2016 SC 613) & Major Muhammad Khalid Karim v. Mst. Saadia Yaqub and Others (PLD 2012 SC 66).

1. In view of above, this transfer application is allowed and suit for recovery filed by Respondent No. 1 titled "Adnan Raza Raja vs. Farhat Naz" pending before the learned Civil Judge, Sarai Alamgir District Gujrat and suit filed by Respondent No. 2 for recovery for defamation titled "Mst. Ayesha Sadaf Raja vs. Mst. Farat Naz" pending

before the learned Addl. District Judge, Sarai Alamgir District Gujrat are hereby withdrawn from the said Courts and transferred to the learned District Judge, Rawalpindi who shall entrust the same to Courts of competent jurisdiction at Rawalpindi, where the suits filed by the applicant are already pending.

(Y.A.) Application allowed

PLJ 2021 Lahore 328

Present: Atir Mahmood, J.

MUHAMMAD SHAFI--Petitioner

versus

ALLAH YAR, etc.--Respondents

C.R. No. 1645 of 2010, decided on 19.11.2020.

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

----S. 42--Civil Procedure Code, (V of 1908), S. 115--Suit for declaration--Dismissed--Denial of exchange mutation--Non-production of scribe--Non-production of original exchange deed--Evidentiary value of a certified copy of exchange deed--Withholding of witnesses--Challenge to--There is categorical denial on behalf of plaintiff that neither he had exchanged his property nor he appeared before any forum in this regard, nor he had seen property and even he had not been given possession of said property--During cross examination, assertion of plaintiff could not be shaken by petitioners while giving suggestions rather plaintiff stood on his feet qua his claim--Petitioners could not produce witnesses of mutation--Identifier as well as scribe of document has also not been produced before Court--Petitioners were duty bound to produce two marginal witnesses of deed as required under Art. 79 of Order to prove deed, however, they remained failed in this regard--Production of certified copy of a registered document may prove contents of original document, but merely showing as to what were contents of original document, is not sufficient in absence of proof of execution of original document--Defendants did not produce original exchange deed and have tendered attested copies of same without seeking permission of Court and evidentiary value qua certified copy of exchange deed would lose its importance and copy would not be sufficient to prove execution of original! documents--Judgment of appellate Court below is in accordance with law which does not call for any interference by High Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction--Petition dismissed.

[Pp. 331, 332 & 333] A, B, C & D

2005 SCMR 152, 1990 SCMR 1259, PLD 2005 SC 418 and PLD 2011 SC 241 ref.

Mr. Shahid Qayyum Chaudhry, Advocate for Petitioner.

Mr. Athar Ali Bhinder, Advocate for Legal Heirs of Respondent No. 1 for Respondents.

Date of hearing: 19.11.2020.

Judgment

Brief facts of the case are that Respondent No. 1 filed a suit against the Petitioner No. 1 and others before the learned Civil Judge, Depalpur for declaration to the effect that he was owner of the property detail of which is well mentioned in the plaint, whereas, registered Mutation No. 941/1 dated 31.03.79 in favour of Petitioner No. 1 was false and illegal; that transaction under alleged exchange Mutation No. 432 dated 07.05.1979 by respondent in favour of predecessor in interest of petitioners No. 1 to 4 as well as Mutation No. 257 dated 17.05.1979 by predecessor in interest of petitioners No. 1 to 4 in favour of Respondent No. 1 was also void and ineffective; that the registered Hiba Nama No. 1655/1 dated 01.07.1979 and subsequent Mutation No. 443 dated 19.08.79 as well as registered Tamleek Nama No. 601/1 dated 26.02.1983 and its subsequent Mutation No. 568 dated 06.03.1983 were also void and against the law and facts. Suit was contested by the Petitioner No. 1 and Haleema Bibi (deceased) by filing written statements whereas, Respondents No. 2 and 3 had not contested the suit. The learned trial Court framed the issues out of the divergent pleadings of the parties. Thereafter, the parties were directed to produce evidence which was adduced accordingly.

Learned trial Court after collecting the oral as well as documentary evidence led by the parties and hearing the arguments dismissed the suit videjudgment and decree dated 20.06.2006. Respondent No. 1 being dissatisfied with the said judgment and decree filed an appeal and vide judgment and decree dated 16.04.2010 passed by the learned lower appellate Court, the same was allowed and suit was decreed. Being aggrieved by judgment and decree passed by learned lower appellate Court, the petitioners have filed the instant revision petition.

1. The learned counsel for the petitioners has argued that learned lower appellate Court has wrongly passed the impugned judgment and decree against petitioners and failed to appreciate the material available on record in true perspective; that suit of Respondent No. 1 was barred by the time, however, learned lower appellate Court had overlooked this aspect of the case; that impugned judgment and decree is result of misreading and non-reading of evidence available on record, therefore, same is liable to be set aside.

2. On the other hand, learned counsel for respondents has seriously controverted the contentions raised by learned counsel for the petitioners and supported the impugned judgment while asserting that learned appellate Court has not committed any illegality or irregularity by passing the impugned judgment which has rightly been passed. Lastly, contended that impugned judgment is in accordance with law, therefore, no interference is called for, however, this petition being not maintainable is liable to be dismissed with cost

3. Arguments heard. Record perused.

4. Perusal of the record reveals that the plea of Respondent No. 1 is that he had not entered in any exchange transaction with regard to the property owned by him measuring 40-kanals 11-Marlas with the property of Mst. Haleeman, whereas, the stance of the petitioners is that the mutation of exchange was rightly entered in the year 1979 which was duly in the knowledge of respondent.

5. I have minutely perused the judgment and decree dated 16.04.2010 passed by learned Additional District Judge, Depalpur. An operative part of said judgment is reproduced herein below:

"12. Perusal of the record reveals that it is admitted by Halima Bibi that property of Mst. Haleeman Bibi measuring 40-kanals 11-Marlas was cancelled from her name and subsequently Mutation No. 15 dated 25.09.1956 in her favour stood cancelled by the order of the Civil Court. Basic conception of exchange of property lies in giving possession of exchanged properties to the parties so that they may enjoy fruits of possession. Admittedly Mst. Haleeman Bibi has never delivered possession of land measuring 40 Kanals 11 Marlas to the appellant, instead she had continuously been enjoying possession of the land owned by the appellant. By operation of law by i.e. by the decree of Civil Court the property of Mst. Haleeman Bibi was cancelled from her name. It is settled law that one cannot pass better title than he himself possesses. Mst. Haleeman Bibi, therefore, has never been in a position to pass title of her property measuring 40 Kanalas 11 Marlas to the appellant."

I am in consonance with the above findings and there is no plausible reason to differ with it. However, in addition to it is observed that while appearing as PW-1 in the witness box during examination in chief, Respondent No. 1/plaintiff asserted that:

"میں نے اراضی متدعویہ کا تبادلہ کبھی بھی حلیمہ بی بی سے نہ کیا تھا۔ میں ایسے تبادلہ کے لئے کہیں بھی پیش نہ ہوا تھا۔ مجھے تبادلہ والی کوئی زمین نہ دکھائی گئی تھی۔ مجھے تبادلہ میں کسی زمین کا کوئی قبضہ نہ دیا گیا تھا۔"

There is categorical denial on behalf of plaintiff that neither he had exchanged his property with the Mst. Haleema Bibi nor he appeared before any forum in this regard, nor he had seen the property in question and even he had not been given possession of the said property. During cross examination, the assertion of the plaintiff could not be shaken by the petitioners while giving suggestions rather the plaintiff stood on his feet qua his claim. When the respondent specifically denied the execution of exchanged deed and petitioners claiming themselves beneficiary of said deed, therefore, the onus to prove this fact shifted upon the petitioners. Under Article 79 of Qanun-e-Shahadat Order, 1984, the petitioners were required to prove the execution of document by production of two attesting witnesses. In the instant case, petitioners could not produce the witnesses of mutation namely Jalal Din son of Noor Ahmad Bhatti and Muhammad Din son of Qamar Din. The identifier as well as the scribe of the document has also not been produced before the Court. The petitioners were duty bound to produce the two marginal witnesses of the deed as required under Article 79 of the Order ibid to prove the deed, however, they remained failed in this regard. Reliance has been placed upon the case reported "Hafiz Tasadduq Hussain vs. Muhammad Din" through Legal Heirs and others" (PLD 2011 SC 241) wherein the purpose, scope and requirements of Article 79 of the Qanun-e-Shahadat Order, 1984 have been the subject matter of. Moreover, the mode of proving in such like cases was to lead secondary evidence like comparison of signature/thumb impressions of the executant with the deeds or documents on which he impressed his thumb or signed the same but said exercise has not been made. It is also settled law that when a thing is provided to be done in a particular manner, it must be done in that particular manner and if done otherwise, will be a nullity in the eye of law. In a case reported as 2005 SCMR 152, the apex Court has held as under:

"Reverting to the production and exhibition of said document, it was incumbent upon the appellant to examine attesting witness Syed Azizul Hassan Notary Public to prove its execution, as according to the appellant himself, this document was written in the City Courts. Non-production of this witness to prove the contents of the document was fatal to the case of the appellant with the legal consequence that the recitals of this document cannot be said to have been proved in terms of Article 78 of Qanun-e-Shahadat 1984. It was stated at the Bar that the attesting witness had died before his evidence could be recorded at the trial but mere statement would not exonerate the appellant of his legal obligation to prove the contents of a disputed document. This fact should have been pleaded before the trial Court and having established non-availability of the witness by reason of his death, steps should have been taken to adduce secondary evidence with the leave of the Court. Simply because no objection was raised to the production of document would not render the document as proved. "

7. Another aspect of this case is that defendants/petitioners had produced certified copies of the document. The production of certified copy of a registered document may prove the contents of the original document, but merely showing as to what were the contents of the original document, is not sufficient in absence of the proof of execution of the original document Defendants did not produce the original exchange deed and have tendered attested copies of the same without seeking permission of the Court and evidentiary value of a certified copy of exchange deed would lose its importance and said copy would not be sufficient to prove execution of original! documents. Defendants had failed to produce the witnesses, identifier and scribe before the trial Court to prove the contents and execution of exchange deed and said witnesses were available to defendants but they withheld said witnesses that if witnesses were produced they would not support their version. To support this version, reliance can be placed on case reported as "Syed Mansoor Ahmad v. Mst. Maqbool Begum and others "(1990 S C M R 1259). It has been held in the case reported as "Imam Din and 4 others v. Bashir Ahmed and 10 others" (PLD 2005 S.C. 418) that in absence of original document, its certified copy is not admissible in evidence and notwithstanding the presumption of correctness being attached with certified copy of a document pertaining to the official record, if the availability or existence of document is disputed and original is not produced, its certified copy would not be admissible in evidence without proving the non-availability of the original. Onus was on the defendants to prove that valid exchange deed had been executed and defendants in this case have failed to prove the execution of exchange deed while producing witnesses as well as original document.

8. Above discussion makes it abundantly clear that the judgment of learned lower appellate Court below is in accordance with the law which does not call for any interference by this Court in

exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction.

1. For what has been discussed above, this revision petition being devoid of any merit is hereby dismissed. No order as to cost.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 333

Present:Rasaal Hasan Syed, J.

NAVEED AKHTAR--Petitioner

versus

SPECIAL JUDGE (RENT), SIALKOT etc.--Respondents

W.P. No. 60976 of 2020, decided on 4.2.2021.

Constitution of Pakistan, 1973--

----Art. 199--Ejectment petition--Writ petition--Consolidated judgments--Leave to contest was allowed--Ejectment petition was allowed--Direction to eviction of petitioner--Appeals--Dismissed--Rent agreement--Default in payment of rent--Violation of terms and conditions of rent agreement--Willful defaulter--Establishment of relationship of landlord and tenant--Validity of eviction order--Producing of oral and documentary evidence for proving of execution of rent agreement--Challenge to--Once a tenant is always a tenant and if he intends to question title of landlord, he shall have to vacate premises, restore possession to landlord and, thereafter, raise a question of title if he so chosen--Findings of Special Judge (Rent) as affirmed in appeal as to existence of relationship of landlord and tenant between Respondent No. 3 and petitioner, could not be shown to be suffering from any misreading or non-reading of evidence or from any error of law--Plea of alleged purchase of share of other co-sharers by Asad Ali, writ petitioner in connected writ petition, does not help tenant to avoid eviction-- Even if it is assumed that other co-sharers in property had made some transaction in favour of Asad Ali, fact remains that Ghulam Sarwar Bajwa, Respondent No. 3, neither transferred nor sold his share in favour of anyone including Asad Ali; and, being so, he continues to be owner to extent of his share in property--It is settled rule that unlike suit for possession where all co-owners need to be associated either as plaintiffs or defendants, it is not necessary to associate other co-sharers in eviction proceedings and as one of co-landlords by co-owners could seek eviction of tenant without impleading other co-owners or associating them in proceedings--ADJ rightly observed that Ejectment Petition was maintainable, Petitioner was proved to be a tenant of Respondent No. 3 and that his admission of payment of rent to him was sufficient to establish relationship of landlord and tenant and that Respondent No. 3 was competent to sue petitioner for eviction and seek his ejectment without associating other co-owners in ejectment proceedings--Validity of eviction order by raising a plea that co-sharer could not dispossess other co-sharer and that remedy would lie in a suit for partition; but this plea was not available in facts of present case as it was not a case in which a co-sharer was seeking ejectment of other co-sharers nor tenant writ petitioner was a co-sharer or even claimed to have purchased any share from any of co-owners in property--His status throughout being a tenant and status of Respondent No. 3 being co-owner landlord was undisputedly proved from evidence on record--Petition was dismissed. [Pp. 336, 337 & 338] A, B, C, D, E, F & G

1976 SCMR 77, PLD 1973 SC 214, 2002 SCMR 429 and 2000 CLC 1841.

Mr. Saeed Ahmad Bhalli, Advocate for Petitioner.

Mr. Shah Nawaz Khan, Advocate for Respondents.

Date of hearing: 1.2.2021.

Judgment

This judgment shall decide the instant petition as well as W.P. No. 60978/2020 titled “Asad Ali v. Special Judge (Rent), etc.” as both emanate from a consolidated judgment and order dated 14.10.2020 of the learned Addl. District Judge, Sialkot.

1. Precise facts from which instant petitions arise are that Respondent N o.3 filed Ejectment Petition against Naveed Akhtar son of Abdul Majeed (petitioner in W.P. No. 60976/2020) seeking his eviction from the shops on grounds of default in payment of rent and violation of terms and conditions of the lease agreement. It was claimed that the shops under reference were occupied by Naveed Akhtar petitioner in the capacity of a tenant who had been paying monthly rent on the basis of a written arrangement dated 30.7.2016, rate of rent at the time of filing of the Ejectment Petition was Rs. 1,500/- per month and that the petitioner violated the terms of the lease, caused damage to the property and was a willful defaulter. In response, Naveed Akhtar petitioner stated that he had obtained the shops on rental basis during the lifetime of the father of Ghulam Sarwar Bajwa, Respondent No. 3; no rent deed was executed with the respondent’s father; on his demise, rent was paid to the mother of Respondent No. 3 and that on her demise, the other legal heirs of mother of Respondent No. 3 made some Family Partition in result whereof a small portion of the property fell to the lot of Respondent No. 3; while the shops came to the lot of other legal heirs who allegedly transferred their proprietary rights in favour of one Asad Ali (writ petitioner in connected W.P. No. 60978/2020). Leave to Contest was allowed vide order dated 10.7.2018 by the learned Special Judge (Rent); issues were framed; evidence was recorded and, thereafter, on consideration of the evidence of the parties and the arguments made pro and contra, the learned Special Judge (Rent) decided issue of existence of relationship of landlord and tenant in the affirmative in favour of Respondent No. 3, held the petitioner as defaulter and directed his eviction vide order dated 07.9.2019. Naveed Alditar as well as Asad Ali filed separate appeals against the order of eviction which were dismissed by the learned Addl. District Judge, Sialkot vide consolidated judgment and order dated 14.10.2020. The instant petition has been filed by Naveed Akhtar tenant while the connected petition has been filed by Asad Ali.

2. Main stance of the learned counsel for the petitioners is that the property belonged to the father of Respondent No. 3; fractional share in the property fell in the lot of Respondent No. 3 which was allegedly on the side of the property while the rented shops had allegedly been vested in the other legal heirs who disposed of their rights in favour of petitioner Asad Ali and that cross-suits, one for declaration filed by the Respondent No. 3 and the other for partition filed by Asad Ali, were pending in the Civil Court and that in law the remedy against co-sharer did not allow eviction proceedings and that a purchaser of share of the property becomes a joint-owner and, being so, the status of Asad Ali was that of a co-owner and that as such the Eviction Petition was legally untenable.

3. Contrariwise, learned counsel for the respondent maintained that the relationship of landlord and tenant between Ghulam Sarwar Bajwa, Respondent No. 3, and Naveed Akhtar, petitioner, was admitted; payment of rent to Respondent No. 3 was also not disputed; execution of document acknowledging the tenancy was not in issue and that even if the stance of Asad Ali, allegedly co-sharer, is considered for the time being yet under the law the right of Respondent No. 3, as co-owner and also as a landlord, to seek eviction could not be questioned and that the findings recorded by the learned forums below were based on correct appreciation of evidence and that no misreading or non-reading could be pointed out.

4. Perusal of pleadings and documents forming part of the ejectment case annexed with these writ petitions reveals that the Eviction Application was filed by Ghulam Sarwar Bajwa, Respondent No. 3, who claimed that the petitioner was inducted in the shops as a tenant by him and that the petitioner also acknowledged the tenancy and further that he had been making payment of rent to Respondent No. 3, therefore, could not negate the relationship of landlord and tenant and that due to default, he was bound to deliver vacant possession to Respondent No. 3.

5. Oral as well as documentary evidence was produced by Respondent No. 3 whereby it was proved that the petitioner was a tenant of Ghulam Sarwar Bajwa who had been paying the rent to him and that petitioner committed default for eight months till the filing of the Eviction Application and that the rate of rent was Rs. 1,500/- per month at the time of filing Eviction Petition. Rent agreement/affidavit dated 30.7.2016, Exh.A.3 was also tendered in evidence wherein the Petitioner Naveed Akhtar had admitted that he was working in the rented shops; and that he was a tenant of Ghulam Sarwar Bajwa, Respondent No. 3, and that he had been paying rent @ Rs. 1,200/- per month to said Ghulam Sarwar Bajwa and that the electricity meter was also in the name of Ghulam Sarwar Bajwa and further he had committed to deliver vacant possession and handover the key to Ghulam Sarwar Bajwa at the time of parting with the possession. Execution of this document was not disputed though the stance taken was that the same was executed for the purposes of completing formalities of police for record purposes. Perusal of the statement of Naveed Akhtar, writ petitioner as A.W.I, clearly proved that he admitted to be tenant of Ghulam Sarwar Bajwa, Respondent No. 3, and admitted payment of rent to him after the death of his father. Asad Ali writ petitioner appeared as A.W.2 and claimed that he had purchased the share of other legal heirs of Allah Ditta i.e. father of Respondent No. 3.

6. Due analysis of the evidence as rightly made by the learned forums below, clearly proves that Naveed Akhtar, writ petitioner, did not deny the execution of the rent agreement; payment of rent to Respondent No. 3, Ghulam Sarwar Bajwa; his undertaking to deliver the possession back to Respondent No. 3 at the time of vacation and, in view thereof, the subsequent denial of tenancy was mala fide and impermissible in law. Once a tenant is always a tenant and if he intends to question the title of landlord, he shall have to vacate the premises, restore the possession to the landlord and, thereafter, raise a question of title if he so chosen. Reference can be made to the rule laid down in “Kalimullah v. Amin Hazin and others’” (1976 SCMR 77) wherein it was observed by the honourable Supreme Court to the effect that once a person accepted another as his landlord and entered into the premises, he could not be allowed to challenge the title of his landlord. The findings of the learned Special Judge (Rent) as affirmed in appeal as to the existence of the relationship of landlord and tenant between Respondent No. 3 and the petitioner, could not be shown to be suffering from any misreading or non-reading of evidence or from any error of law.

7. As regards the plea of alleged purchase of share of the other co-sharers by Asad Ali, writ petitioner in the connected writ petition, does not help the tenant to avoid eviction. Even if it is assumed that the other co-sharers in the property had made some transaction in favour of Asad Ali, the fact remains that Ghulam Sarwar Bajwa, Respondent No. 3, neither transferred nor sold his share in favour of anyone including Asad Ali; and, being so, he continues to be the owner to the extent of his share in the property and proved through oral as well as documentary evidence that he had rented out the shops to Naveed Akhtar who admitted payment of rent to him and also admitted the execution of Ex.A.3, agreement/affidavit acknowledging tenancy and, being so, as a co-owner, he could seek eviction of the Petitioner Naveed Akhtar on ground of default. It is settled rule that unlike suit for possession where all the co-owners need to be associated either as plaintiffs or defendants, it is not necessary to associate other co-sharers in eviction proceedings and as one of the co-landlords by co-owners could seek eviction of the tenant without impleading the other co-owners or associating them in the proceedings. Reference in this regard can be made to the rule in “Khalique Ahmed v. Abdul Grant and another” (PLD 1973 SC 214) where it was observed to the effect that a suit for possession could be brought by all co-owners jointly but in case of suit for ejectment, one of the owners could sue for possession without joining other co-owners. In view of the settled rule, the learned Special Judge (Rent) as well as the learned Addl. District Judge rightly observed that the Ejectment Petition was maintainable, the Petitioner Naveed Akhtar was proved to be a tenant of Respondent No. 3, Ghulam Sarwar Bajwa, and that his admission of the payment of rent to him was sufficient to establish relationship of landlord and tenant and that Respondent No. 3 was competent to sue the petitioner for eviction and seek his ejectment without associating other co-owners in the ejectment proceedings. Reference can also be made in this respect to “Muhammad Hanif and another v. M Jamil Turk and 5 others” (2002 SCMR 429) where the honourable Supreme Court observed to the effect that a co-sharer could file ejectment proceedings against the tenant without impleading other co-sharers.

8. An attempt was made to question the validity of eviction order by raising a plea that the co-sharer could not dispossess the other co-sharer and that the remedy would lie in a suit for partition; but this plea was not available in the facts of the present case as it was not a case in which a co-sharer was seeking ejectment of the other co-sharers nor Naveed Akhtar, the tenant writ petitioner was a co-sharer or even claimed to have purchased any share from any of the co-owners in the property. His status throughout being a tenant and the status of Respondent No. 3 being co-owner landlord was undisputedly proved from the evidence on record. In such circumstances, the objection raised was untenable. In “Saifullah and another v. Ch. Ghulam Ghons” (2000 CLC 1841), it was observed that where one of the heirs successfully established his ownership alongwith the other co-sharers, the tenant never claimed to be the owner of the premises or to have purchased the same from, either the original owner or subsequent transferee, the tenant in the circumstances will be occupying the premises in no other capacity except as a tenant of the original owner and that after his death, the legal heirs of the original owner. In view of the rule, it was rightly observed by the learned forums below that the petitioner could not claim any status other than that of a tenant. Being a tenant, he was bound to continue payment of rent to Ghulam Sarwar Bajwa, Respondent No. 3, and his act of stopping payment of rent and committing default for more than eight months, rendered him liable to eviction as rightly allowed by the learned forums below.

9. In so far as the connected writ petition filed by Asad Ali is concerned, he claimed to have purchased the share of other legal heirs of Allah Ditta and filed a suit for partition. If this is so, he should pursue the remedy already available to him. In any case, in eviction proceedings initiated by Respondent No. 3 as landlord against his tenant, the writ petitioner was not a necessary or proper party and, therefore, his application for impleadment was rightly declined. The fact that the suit for partition has been filed, shows that property had not been partitioned either under the decree of the Court or under any family settlement, as it was denied by Ghulam Sarwar Bajwa, Respondent No. 3, in his suit for declaration. Mere pendency of any civil litigation for partition of property could hardly be a reason to protect the tenant from eviction due to default. The oral and documentary evidence on record as taken note of by the learned Special Judge (Rent) as also the learned Appellate Court, shows that it was proved beyond any shadow of doubt that Naveed Akhtar was a tenant of Ghulam Sarwar Bajwa who executed a rent agreement in his favour, admitted payment of rent to him and, in view of such evidence, Respondent No. 3 was legally eligible to seek eviction of Naveed Akhtar. The learned Addl. District Judge, therefore, rightly dismissed the appeal of Asad Ali. Orders passed by the learned forums below do not suffer from any error of law or jurisdiction as to call for interference in Constitutional jurisdiction.

10. For the reasons recorded above, both writ petition Nos.60976/2020 and 60978/2020 are devoid of merit and are, accordingly, dismissed.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 339

Present: Faisal Zaman Khan, J.

MUHAMMAD YAQOOB--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, PAKPATTAN SHARIFetc.--Respondents

W.P. No. 3872 of 2021, decided on 21.1.2021.

Constitution of Pakistan, 1973--

----Art. 199--Filing of two separate suits for recovery of maintenance allowance and dowry articles by Respondents No. 3 to 7--Decreed--Appeals--Dismissed--Enhancement of quantum of maintenance allowance--Consolidation of suits--Determination of alternate value of dowry articles--Liability of petitioner--Paying capacity of petitioner--Challenge to--It transpires that while appearing as PW.1, Respondent No. 3 in her affidavit has mentioned complete details about dowry articles given to her at time of marriage and this fact has also been endorsed by PW.2, whereas, contrarily no cogent, concrete and confidence inspiring evidence has been produced by petitioner to rebut claim of Respondent No. 3, therefore, both Courts below with application of their independent mind have consciously determined alternate value of dowry articles keeping in view wear and tear of same--Minors are liability of petitioner being father, thus, he has to maintain them in all eventualities and till date he has failed to discharge his liability, therefore, both Courts below have rightly determined quantum of maintenance allowance, which is neither exorbitant, nor is beyond paying capacity of petitioner--Counsel for petitioner has not been able to highlight any jurisdictional defect or procedural impropriety in impugned judgments and decrees--Petitions was dismissed.

[Pp. 340 & 341] A, B & C

2017 SCMR 393, 2002 SCMR 1290, PLD 2015 Lah. 208 and 2020 CLC 549 ref.

Mr. Sajid Ali Baloch, Advocate for Petitioner.

Date of hearing: 21.1.2021.

Order

Through this petition consolidated judgments and decrees dated 12.02.2020 and 08.12.2020 passed by Respondent Nos. 2 and 1, respectively, have been assailed. By virtue of the former judgment two separate suits for recovery of maintenance allowance and dowry articles instituted by Respondent No. 3 to 7 were decreed and through the latter the appeals filed by the parties have been decided and the appeal preferred by the petitioner has been dismissed whereas the one preferred by Respondent Nos. 3 to 7 has been partially accepted and the quantum of maintenance allowance to the extent of Respondent Nos. 4 and 5 (minors) has been enhanced.

1. Succinctly, the facts of the case are that marriage was solemnized between the petitioner and Respondent No. 3 about 25 years ago. Out of the wedlock Respondent Nos. 4 to 7 were born. Due to altercation the between the spouses two separate suits for recovery of maintenance allowance and dowry articles were filed by Respondent Nos. 3 to 7 against the petitioner, wherein, written statements were filed by the petitioner, whereafter, both the suits were consolidated and out of divergent pleadings of the parties as many as 06 consolidated issues were framed; evidence pro and contra was led, whereafter, vide impugned consolidated judgment and decrees dated 12.02.2020 both the suits were decreed. Feeling aggrieved, both the parties preferred their respective appeals, however, vide consolidated judgment and decrees dated 08.12.2020 appeal preferred by Respondent Nos. 3 to 7 was partially accepted and the quantum of maintenance allowance already granted to Respondent Nos. 4 and 5 was enhanced whereas to the extent of remaining relief the appeal was dismissed whereas the appeal preferred by the petitioner was dismissed, therefore this petition.

2. Learned counsel for the petitioner submits that petitioner does not have sufficient means to pay the maintenance allowance granted by both the learned Courts below. As regards the dowry articles he submits that there is no evidence available on the record to substantiate that any dowry articles were given to Respondent No. 3 at the time of marriage, therefore, impugned judgments and decrees are liable to be set aside.

4 Arguments heard. Record perused.

5. From the perusal of the available record, it transpires that while appearing as PW.1, Respondent No. 3 in her affidavit has mentioned the complete details about the dowry articles given to her at the time of marriage and this fact has also been endorsed by PW.2, whereas, contrarily no cogent, concrete and confidence inspiring

evidence has been produced by the petitioner to rebut the claim of Respondent No. 3, therefore, both the learned Courts below with the application of their independent mind have consciously determined the alternate value of the dowry articles keeping in view the wear and tear of the same, which is in consonance with the principle laid down in a judgment reported as ShafiqueSultan v. Mst. Asma Firdous and others (2017 SCMR 393).

6. As regards the claim of the petitioner as to his inability and scarcity of means to pay the maintenance allowance granted to Respondent Nos. 4 and 5, there is nothing on the record to substantiate this assertion. Since the minors are the liability of the petitioner being father, thus, he has to maintain them in all eventualities and till date he has failed to discharge his liability, therefore, both the learned Courts below have rightly determined the quantum of maintenance allowance, which is neither exorbitant, nor is beyond the paying capacity of the petitioner.

7. Since the learned, counsel for the petitioner has not been able to highlight any jurisdictional defect or procedural impropriety in the impugned judgments and decrees, therefore, in view of judgments reported as Muhammad Rafique v, Saima Rafique (Minor) and 2 others (2002 SCMR 1290), Tasawar Hussain v. Mst. Farzana Kausar and others (PLD 2015 Lahore 208) and Mst. Saman Naseer v. Additional District Judge, Lahore and others (2020 CLC 549), no ground for interference is made out.

1. In view of the above, this petition is dismissed in limine.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 344

Present: Muhammad Farrukh Irfan Khan, J.

MUHAMMAD SHEHBAZ NASIR--Petitioner

versus

ADDITIONAL DISTRICT JUDGE, JHANG and 7 others--Respondents

W.P. No. 7902 of 2017, decided on 14.2.2018.

Constitution of Pakistan, 1973--

----Art. 199--Suit for recovery of maintenance allowance and dowry articles--Decreed--Admission regarding non-return of dowry articles by DW-4--Non execution of iqrarnama--Petitioner failed to record documentary evidence--Deniel of possession of dowry articles by petitioner--Challenge to--Marginal witness of alleged agreement while appearing in witness box as DW4 admitted that neither at time of return of dowry, articles he was present at spot nor iqramama was written in his presence--He further admitted that he put his signature on Iqrarnama without reading its contents--Second witness of Iqrarnama naely also admitted that he was not present at time of writing of Iqrarnama and he put his signature at home--Alleged iqrarnama was neither executed in their presence nor they know about its contents--Furthermore, petitioner has failed to bring on record documentary evidence from which it could be inferred that he transferred land measuring 2K-5M in name of respondent as alleged in Iqrarnama, in absence thereof both Courts below were fully justified in disbelieving same and no exception can be drawn therefrom--It is an admitted fact that dowry articles were given to respondent at time of marriage, however, stance of petitioner was that same has been returned through agreement Ex.D3--It has been established that petitioner has failed to prove said document--Petitioner denied having possession of any dowry articles as such Judge Family Court keeping in view wear and tear during subsistence of marriage has rightly fixed Rs. 1,00,000/- as alternate value of dowry articles which in my considered view meets end of justice and needs no intervention by this Court in its Constitutional jurisdiction--Petition was dismissed.

[Pp. 346 & 347] A, B, C & D

Mr. Zabi Ullah Nagra, Advocate for Petitioner.

Syed Ali Raza Gillani, Advocate for Respondent No. 3.

Date of hearing: 14.2.2018.

Order

Briefly the facts of the case are that the Respondent No. 3 filed a suit claiming her maintenance allowance as well as maintenance of her minor children and dowry articles against the petitioner who contested the same by filing written statement. Out of divergent pleadings of the parties, the learned Judge Family Court framed necessary issues, recorded evidence of the parties and decreed the suit of the respondent vide impugned judgment dated 08.11.2016 in the following terms:

"The nutshell result of my discussion on above said issues, the minors Plaintiffs No. 2 to 6 are entitled to get the decree for the maintenance allowance at the rate of Rs. 2000/- per month pr head from the date of institution of this suit till today i.e. 08.11.2016 and in future they are entitled to get the decree for the maintenance allowance at the rate of Rs. 4000/- per month per head till their legal entitlement. Plaintiff No. 1 is entitled to get recover maintenance allowance at the rate of Rs. 4,000/- per month from institution of this suit till Iddat period. Suit of plaintiff No. 1 for recovery of dowry articles is hereby decreed and plaintiff No. 1 is entitled to get amount Rs. 100,000/- as alternate price of dowry articles."

1. Against the above decree the petitioner preferred appeal before the learned Appellate Court, who vide impugned judgment and decree dated 17.01.2017 dismissed his appeal. 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 nonreading of the evidence; that while awarding maintenance to the minors both the Courts below have failed to take into consideration financial status of the petitioner; that the petitioner is unable to pay maintenance to the minors at the rate fixed by the learned Courts below; that after receiving land measuring 2K-5M the respondent gave an undertaking that she would not claim maintenance of the minors and in this regard also executed Iqrarnama dated 21.08.2014; that in the said Iqrarnama the respondent also conceded that she received her dowry articles; that the petitioner proved this iqrarnama through its marginal witnesses but both the learned Courts below have failed to take into consideration this important aspect of the matter while rendering impugned judgments and decrees; that evidence in this case has not been properly appreciated and the conclusions drawn therefrom are liable to be set- aside.

3. On the converse, learned counsel for respondents submits that the impugned judgments and decrees are well reasoned; that the petitioner has failed to prove validity of the Iqrarnama as such both the Courts below have rightly not given any weightage to the said document; that the quantum of maintenance allowance is in accordance with the means of the petitioner and needs no modification.

4. I have heard the arguments of the learned counsel for the parties and gone through the record.

5. Muhammad Ismail, marginal witness of the alleged agreement dated 21.08.2013 Ex.D3 while appearing in the witness box as DW-4 admitted that neither at the time of return of dowry, articles he was present at the spot nor iqrarnama was written in his presence. He further admitted that he put his signature on Iqrarnama without reading its contents. The second witness of Iqrarnama namely Muhammad Waris also admitted that he was not present at the time of writing of Iqrarnama and he put his signature at home. In the light of these admissions, it can safely be concluded that alleged iqrarnama was neither executed in their presence nor they know about its contents. Furthermore, the petitioner has failed to bring on record documentary evidence from which it could be inferred that he transferred land measuring 2K-5M in the name of the respondent as alleged in the Iqrarnama, in the absence thereof both the Courts below were fully justified in disbelieving the same and no exception can be drawn therefrom.

1. Now coming to the quantum of maintenance allowance fixed for the minors. The petitioner in his written statement alleged that he is Driver in Anti Narcotics Force and his monthly salary is Rs. 12,000/- but in order to substantiate his version he did not produce his salary slip in the evidence. Before this Court he has placed on record salary slip according to which in the month of January, 2017 his take home salary was Rs. 28,619. Furthermore, the petitioner alleged to have alienated agricultural land in favour of the respondent which he could not prove, however, it leads to an inference that he also owns agricultural land. Keeping in view the above circumstances, quantum

of maintenance allowance fixed by the learned Judge Family Court and affirmed by the learned Appellate Court in no manner can be termed harsh and exorbitant or beyond the means of the petitioner as such this Court is not inclined to intervene with the same.

1. So far as the issue of dowry articles is concerned, by way of impugned judgment the learned Judge Family Court decreed the suit of the respondent to the tune of Rs. 1,00,000/-. According to sub-section (2)(b) of Section 14 of the Punjab Family Courts (Amendment) Act, 2015 no appeal shall lie against a decree of dowry articles upto Rs. 1,00,000/-. As the legislature has specifically prohibited filing of appeal against such decree of the Family Court, therefore, if the Constitutional Petition is allowed to be filed it would amount to override the statutory provision which is beyond the scope of this Court. Therefore, this petition to the extent of dowry articles is liable to be dismissed on this score alone.

8. Even on merits the petitioner has no case. It is an admitted fact that dowry articles were given to the respondent at the time of marriage, however, the stance of the petitioner was that the same has been returned through agreement Ex.D3. In the light of my discussion in the preceding paras it has been established that the petitioner has failed to prove the said document. The petitioner denied having possession of any dowry articles as such the learned Judge Family Court keeping in view the wear and tear during subsistence of marriage has rightly fixed Rs. 1,00,000/- as the alternate value of the dowry articles which in my considered view meets the end. of justice and needs no intervention by this Court in its Constitutional jurisdiction.

1. Resultantly, this petition being without any substance is dismissed. No order as to costs.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 347 [Rawalpindi Bench, Rawalpindi]

Present:Sadiq Mahmud Khurram, J.

Doctor MANZOOR HUSSAIN MALIK--Petitioner

versus

STATE and another--Respondents

W.P. No. 1655-Q of 2020, heard on 13.1.2021.

Transplantation of Human Organs and Tissues Act, 2010 (VI of 2010)--

-----Ss. 9, 10, 11, 14(2) & 14(4)--Criminal Procedure Code, (V of 1898), Ss. 249-A & 561--Allegation of transplantation of human kidneys without authority--Death of patients due to post kidney transplant--Alternate remedy--Powers of--Quashment of FIR--Prohibition against cognizance of offence by a Court--Taking of cognizance of an offence by a Court is a thing quite distinct from investigation of a reported offence by police or any of her investigation agency--If provisions of Section 14(2) of Transplantation of Human Organs and Tissues Act, 2010 as amended by Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 place a prohibition against taking of cognizance of an offence by a Court except in given manner then all prior steps taken before stage of taking of cognizance by a Court could be deemed to be permissible--Power of quashing an FIR and criminal proceeding should be exercised sparingly by Courts and same has to be done with circumspection-- Exercise of said jurisdiction in routine will not only affect due process of law but also result in devastating exercise carried out by Investigating Agency--Case in hand is at its inception, trial Court has taken cognizance of same, and prosecution has to prove its case by producing relevant and admissible evidence--If at any stage petitioner is of view that he is innocent, he has a remedy under Sections 249-A of Code of Criminal Procedure, 1898--Petition was dismissed.

[Pp. 350, 351] A, B, C & D

2006 SCMR 483 and PLD 2013 SC 401 ref.

Mr. Mubaras Khan Alizai, Advocate, for Petitioner.

Mr. Khaqan Meer, Assistant Attorney General for Pakistan with Imran Ahmed, Director Legal and Muhammad Tariq Assistant Director Legal, Punjab Human Organ Transplantation Authority (PHOTA) for Respondents.

Date of hearing: 13.1.2021.

Judgment

Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner Namely Doctor Manzoor Hussain Malik seeks quashing of the FIR No. 37 of 2020, dated 12.08.2020, registered at Police Station FIA Anti-Corruption Circle, Islamabad in respect of offences under Sections 9, 10 and 11 of the Transplantation of Human Organs and Tissues Act, 2010 as amended by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 and under Section 109, PPC.

1. Precisely, facts necessary for disposal of instant petition are that the allegation as against the petitioner, namely Doctor Manzoor Hussain Malik is that the petitioner was rendering his services for the purposes of transplantation of human kidneys without authority, performed the illegal transplants of kidneys of Hassan Ali son of Mst. Rehana Kanwal and Gohar Ali son of Saeed Rassan and after the operations, both the said patients died due to post kidney transplant rejection. Consequently, the FIR No. 37 of 2020, dated 12.08.2020 was registered at Police Station FIA Anti-Corruption Circle, Islamabad in respect of offences under Sections 9, 10 and 11 of the Transplantation of Human Organs and Tissues Act, 2010 as amended by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 and under Section 109, PPC. During the course of investigation, the witnesses including Mst. Rehana Kanwal (mother of Hassan Ali deceased), Akbar Ali son of Saeed Rassan (brother of Gohar Ali deceased) and Mehmood Ahmed got recorded their statements with regard to the allegations against the petitioner and documentary evidence was also collected.

2. The learned counsel for the petitioner contends that the FIR No. 37 of 2020, dated 12.08.2020, registered at Police Station FIA Anti-Corruption Circle, Islamabad in respect of offences under Sections 9, 10 and 11 of the Transplantation of Human Organs and Tissues Act, 2010 as amended by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 and under Section 109, PPC could not be registered as according to Section 14(2) of the Transplantation of Human Organs and Tissues Act, 2010 as amended by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 no Court shall take cognizance of an offence under the Act except on a complaint in writing made by the Monitoring Authority or its Secretary or an aggrieved person who has given notice of not less than fifteen days, in such manner as may be prescribed, to the Monitoring Authority, of the alleged offence and of his intention to lodge a complaint. The learned counsel for the petitioner has further argued that the Federal Investigation Agency (FIA) had no authority to conduct the investigation of the case.

3. The learned Assistant Attorney General for Pakistan repelled the above submissions, inter alia stating that as the learned trial Court has taken cognizance of the case therefore an efficacious, adequate, alternate remedy in terms of Section 249-A, Code of Criminal Procedure, 1898 is available to the petitioner and this petition is therefore not maintainable.

4. I have heard the learned counsel for the petitioner, the learned Assistant Attorney General for Pakistan and have also gone through the record of this case with their able assistance.

6. This Court may observe that the learned counsel for the petitioner seems to have confused the expression “cognizance” appearing in Section 14(2) of the Transplantation of Human Organs and Tissues Act, 2010 as amended by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 with the expressions “cognizable” and “non-cognizable” finding mention in Sections 154 to 157 of the Code of Criminal Procedure, 1898. Taking of cognizance of an offence by a Court is a thing quite distinct from investigation of a reported offence by the police or any other investigation agency. The provisions of Section 14(2) of the Transplantation of Human Organs and Tissues Act, 2010 as amended by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 deal only with taking of cognizance of an offence by a Court and the same do not place any embargo upon reporting such an alleged offence to the police authorities, registration of an F.I.R. in that regard or conducting of an investigation in respect of such an allegation. An analogy could be drawn to conclude that if the provisions of Section 14(2) of the Transplantation of Human Organs and Tissues Act, 2010 as amended by the Punjab Transplantation of Human Organs and Tissues (Amendment) Act 2012 place a prohibition against taking of cognizance of an offence by a Court except in the given manner then all prior steps taken before the stage of taking of cognizance by a Court could be deemed to be permissible. Furthermore, Section 14(4) of the Transplantation of Human Organs and Tissues Act, 2010 provides that the offences punishable under this Act shall be non-bailable. Reliance in this regard is placed on the case of “Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others" (2006 SCMR 483) wherein the august Supreme Court of Pakistan has enunciated the following principle of law:

“2. In the absence of any finding that the above mentioned offences mentioned in the F.I.R. were false and malicious and in the absence of a finding that if a particular forum or mode had been prescribed with respect to the taking of cognizance of an offence then the same also implied prohibition regarding the registration of an F.I.R., no such order could be passed nor the same could be approved. Needless to add that the registration of an F.I.R. and taking of cognizance of cases were two distinct and independent concepts under the criminal law; that if the A intention of the law-maker was to put any clog on the registration of an F.I.R. then the Legislature would have said so specifically and that if the law put a condition only on the taking of cognizance then it can never be read to imply prohibition on registration of F.I.Rs.”

Furthermore, with regard to the contention of the learned counsel for the petitioner that the Federal Investigation Agency (FIA) had no authority to conduct the investigation of the case, suffice is to observe that The Ministry Of Interior, Government of Pakistan issued a Statutory Notification (S.R.O.) No. 353(1)/2017 on 31st of March,2017, making an amendment in the Schedule of Federal Investigation Agency Act, 1974 (VIII of 1975) and placing the Transplantation Human Organ and Tissue Act 2010 in the schedule of the Federal Investigation Agency Act, 1974 (VIII of 1975) . By virtue of Section 3 of the Federal Investigation Agency Act, 1974 (VIII of 1975) the Federal Investigation Agency can validly inquire into and investigate the offences made punishable under the Transplantation Human Organ and Tissue Act 2010, including an attempt or conspiracy to commit, and abetment of any such offence.

7. No doubt, this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and Section 561-A of Criminal Procedure Code has the authority to quash an FIR but this jurisdiction is required to be exercised only in exceptional and rare cases. The power of quashing an FIR and criminal proceeding should be exercised sparingly by the Courts and the same has to be done with circumspection. The exercise of the said jurisdiction in routine will not only affect the due process of law but also result in devastating the exercise carried out by the Investigating Agency. As observed above, the case in hand is at its inception, the learned trial Court has taken the cognizance of the same, and the prosecution has to prove its case by producing relevant and admissible evidence. If at any stage the petitioner is of the view that he is innocent, he has a remedy under Sections 249-A of the Code of Criminal Procedure, 1898. Guidance in this respect is taken from the case of “Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others” (PLD 2013 SC 401) wherein the august Supreme Court of Pakistan has enunciated the following principle of law:

“The law is quite settled by now that after taking of cognizance of a case by a trial Court the F.I.R. registered in that case cannot be quashed and the fate of the case and of the accused persons challaned therein is to be determined by the trial Court it self. It goes without saying that if after taking of cognizance of a case by the trial Court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigours of a trial then the law has provided him a remedy under Sections 249- A/265-K, Cr.P.C. to seek his premature acquittal if the charge against him is groundless or there is no probability of his conviction.”

1. In the light of above discussion, the instant petition, being devoid of any merit is accordingly dismissed, however, the petitioner shall be at liberty to avail all the alternate remedies available to him under the law, and if any application under Section 249-A of the Code of Criminal Procedure, 1898, is filed, the learned Court concerned shall decide the same strictly on its own merits, in accordance with the law and without being influenced by the observations made hereinabove.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 352

Present: Ch. Muhammad Masood Jahangir, J.

Malik EHSAN ULLAH etc.--Petitioners

Versus

PROVINCE OF THE PUNJAB etc.--Respondents

C.R. No. 3527 of 2016, heard on 26.3.2019.

Res judicata--

----Doctrine of constructive--Subsequent suit--Applicability--Whereas doctrine of constructive res judicata on other hand, bars trial in a subsequent suit of matters not alleged by either of parties in former suit, but which might and ought to have been alleged, as such in case in hand this principle was squarely applicable. [P. 355] A

PLD 1982 SC 146 ref.

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

----O.II R. 2--Subsequent suit regarding any fresh relief--Limitation--Once limitation started running in 1994 when earlier suit was instituted, then it could not be stopped latter on and on score of limitation second suit instituted after twenty one years was badly barred by time--It was a hard fact that till 1½ month prior to institution of ensuing suit, earlier suit of petitioners was still sub judice before august Supreme Court, who at that moment could amend their pleadings, but they waited for its decision, which on having been decided against them, they managed second one in a contemptuous manner with aim to reopen past and closed chapter and such a tendency cannot be tolerated any further because it would amount to promote endless litigation. [P. 356] B & C

Ch. Zulfiqar Ali, Advocate for Petitioners.

M/s. Ijaz Hussain Gorcha, Abdul Sattar Chughati, Syed Akhtar Hussain Shirazi, Advocates for Respondents No. 2 to 19.

Mr. Muhammad Aamer Javed Bhatti,Advocate for Respondent No. 65.

Mr. Shadab Hassan Jafri, Addl. A.G. for Respondent No. 1.

Date of hearing: 26.3.2019.

Judgment

Shorn of unnecessary detail, admittedly earlier two suits filed by the contesting parties ended against present petitioners upto the level of the apex Court, which vide order dated 19.11.2015 passed in C.P. No. 2337 of 2015 resolved the issue with regard to estate left by predecessor of the parties. Scope of Section 2-A of the Muslim Personal (Shariat) Application Act, 1948 was also discussed by the honourable Supreme Court of Pakistan in last paragraph of its said order, which was never assailed by means of Review Petition before the same Court, rather within 1½ month thereafter on 30.12.2015, the second suit in hand was instituted by the present petitioners to reopen the controversy already culminated as referred above. The respondents promptly filed an application for rejection of the plaint that suit was hit by Section 11 as well as Order II Rule 2 of the Code, 1908. The learned Trial Court being sanguine to the stance of the respondents/ defendants rejected the plaint. Despite being assailed before the learned District Court by means of Appeal, it was maintained and to call in question their unanimous orders, this Civil Revision was preferred.

1. Ch. Zulfiqar Ali, Advocate, learned counsel for the petitioners while relying upon the case law cited as Shahzad and another vs. IVth Additional District Judge, Karach (East) and 5 others (PLD 2016 Sindh 26), Muhammad Saleem, Ullah and others vs. Additional District Judge, Gujranwala and others (PLD 2005 SC 511) and Q.B.E. Insurance (International) Ltd vs. Jaffar Flour and Oil Mills Ltd. and others (2008 SCMR 1037) emphasized that question of fact especially with regard to inheritance can only be resolved after framing of issues, but both the Courts below without application of their judicious mind erred in law to non-suit the petitioners on technicality. It was further argued that neither the law of limitation was involved nor it was a case of applicability of Order II Rule 2 of the Code, 1908, whereas new cause of action was subsequently accrued to the petitioners, but both the Courts below without going through the contents of the plaint passed the impugned orders in a haste, which being nullity in the eye of law are not sustainable.

In response, M/s. Ijaz Hussain Gorcha, Abdul Sattar Chughtai, Syed Akhtar Hussain Shirazi and Muhammad Aamer Javed Bhatti, Advocates, learned counsel for private respondents and Mr. Shadab Hassan Jafri, Addl. A.G. on behalf of Respondent No. 1 being in agreement submitted that the suit was not only hit by above provisions of law, rather it was a contemptuous act and supported the impugned verdicts while adding further that concurrent findings cannot be disturbed in the exercise of jurisdiction vested u/S. 115 of the Code ibid.

1. Heard and record perused.

2. Undeniably, a round of litigation was earlier played among the present parties with regard to land involved in the suit in hand. In previous suit the following were the issues:-

1۔ کیا غازی مورث مدعیان ڈگری عدالت دیوانی مورخہ 16.5.46 کی رو سے مالک قابض اراضی متدعویہ تھا۔ اور اس طور پر مدعیان وارثان باز گشت غازی متوفی ڈگری سرکایہ پانے کے حقدار ہیں؟ بذمہ مدعیان۔

2۔ کیا انتقالات وراثت مسماۃ غلام فاطمہ متوفیہ غلط اور خلاف قانون و واقعات ہیں؟ بذمہ فریقین

3۔ مسمی نواز عرف نازو و مسماۃ غلام فاطمہ متوفیان کس فرقے سے تعلق رکھتے ہیں؟ بذمہ فریقین

4۔ کیا مدعیان کو کوئی بنائے دعویٰ حاصل نہ ہے؟ بذمہ علیہم

5۔ کیا فارم دعویٰ غلط ہے؟ بذمہ مدعا علیہم

6۔ کیا مدعیان قول و فعل خود سے مانع دعویٰ دائری ہیں؟ بذمہ مدعا علیہم 5، 6 تاج

7۔ کیا دعویٰ مدعیان زائد المیعاد ہے؟ بذمہ مدعا علیہم 1، 2 تا 4

8۔ کیا دعویٰ مدعیان بوجہ شمولیت غیر ضروری فریق و عدم شمولیت ضروری فریق ناقص ہے؟ بذمہ مدعا علیہ نمبر 1۔

9۔ کیا مدعا علیہم ہر جانہ خاص پانے کے حقدار ہیں؟ کس قدر؟ بذمہ مدعا علیہم 1، 5، 6، تا 6 ج۔

10۔ کیا دعویٰ مدعا علیہ نمبر 1 بعنوان مہرمائی بنام غازی نا قابل پزیرائی ہے؟ بذمہ مدعیان۔

11۔ داد رسی۔

which were finally decided upto the level of august Supreme Court In the recent suit, again inheritance mutation No. 1173 dated 15.05.1975 of Mst. Ghulam Fatima had been challenged, which question directly had already been culminated while rendering findings on Issue No. 2, referred hereinabove, as such the matter in issue once decided cannot be tried for the second time. It is a fit case that the matter directly and substantially in issue is the same, hence the petitioners were precluded from again raising the grouse, which had earlier been finalized. The doctrine of res judicata bars the subsequent litigation if following five conditions are fulfilled:

(1) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually (Explanation III), or constructively (Explanation IV), in the former suit

(2) The former suit must have been a suit between the same parties or between parties under whom they or any one of them claim (Explanation IV).

(3) The parties as afore-said must have litigated under the same title in the former suit.

(4) The Court which decided the former suit must have been a Court competent to try the subsequent suit in which such issue is subsequently raised (Explanation II).

(5) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit (Explanation V).

whereas doctrine of constructive res judicata on the other hand, bars the trial in a subsequent suit of matters not alleged by either of the parties in the former suit, but which might and ought to have been alleged, as such in the case in hand this principle was squarely applicable. This doctrine had engaged the attention of the apex Court in a case cited as Abdul Majid and others vs. Abdul Ghafoor Khan and others (PLD 1982 SC 146) and the relevant portion thereof for ready reference is reproduced as under:

There is no force in any of the arguments raised by the learned counsel. He admits that the petitioners fled the suit after the final decision by the High Court, to remove its effect, so as to get their claim sanctioned from the Rehabilitation Authorities. It is, therefore, not correct to say that the High Court decision would bar the fresh enquiry before the Rehabilitation Authorities only. Whatever the forum whether of special or general jurisdiction it will operate as a bar on the re-opening of the case, except of course to the extent the law permits by way of review/appeal. As was held by this Court in the case of Muhammad Chiragh-ud-Din relied upon by the learned Courts below, even if the provision of Section 11, C.P.C. do not apply in terms, in such like cases, the general principles of res judicata would apply. Therefore, there is no force in the second argument of the learned counsel either. In this connection learned counsel also tried to argue that the principle of constructive res judicata would not apply in cases where

Section 11, C.P.C. does not apply, in terms. There is no reason to exclude a particular kind of res judicata when considering these questions, neither on the basis of any law nor on any other general principle.

5. Moreover, without conceding, if the argument of Mr. Zulfiqar that some new relief was claimed in subsequent suit is taken to be correct, even then mandate of Order II rule 2 of the Code, 1908 precluded the petitioners to file subsequent suit regarding any fresh relief, which was relinquished in earlier one. Besides, the other setback was that once limitation started running in 1994 when earlier suit was instituted, then it could not be stopped latter on and on the score of limitation the second suit instituted after twenty one years was badly barred by time.

It was a hard fact that till 1½ month prior to institution of ensuing suit, the earlier suit of the petitioners was still sub judice before the august Supreme Court, who at that moment could amend their pleadings, but they waited for its decision, which on having been decided against them, they managed the second one in a contemptuous manner with the aim to reopen the past and closed chapter and such a tendency cannot be tolerated any further because it would amount to promote endless litigation. The case law cited by learned counsel for the petitioners being run on different footing is not applicable to the facts of the case in hand. Resultantly this Civil Revision being devoid of any merit and force is dismissed with costs of Rs. 50,000/- (Rupees fifty thousand only).

(R.A.S.)

PLJ 2021 Lahore 356 [Multan Bench, Multan]

Present: Sardar Muhammad Sarfraz Dogar, J.

MUHAMMAD HUSSAIN--Petitioner

versus

GOVERNMENT OF PUNJAB, through Secretary Housing UD&PHE Department Punjab, Lahore and 6 others--Respondents

W.P. No. 17473 of 2020, decided on 24.12.2020.

Constitution of Pakistan, 1973--

----Art. 199--Civil Procedure Code, 1908, S. 12(2) Suit for declaration--Decreed--Application for setting aside decree--Accepted--Appeal--Vacation order of illegal occupation by Deputy Commissioner--Pendency of appeal--Opportunity of hearing--As matter is pending adjudication before Court of competent jurisdiction, therefore, this Court is of view that impugned order is liable to be set aside--As a matter is pending adjudication before ADJ Vehari, therefore, impugned order passed by Respondent No. 1 is set aside--However, ADJ Vehari, seized with matter is directed to conclude same in accordance with law by providing an opportunity of hearing to all concerned within stipulated period of 90 days--Petition was accepted. [Pp. 357 & 358] A & B

Sardar Ishfaq Ahmed Baloch, Advocate for Petitioner.

Mr. Tariq Nadeem, AAG with Tahir Javed Director and Muhammad Younas Mughal Deputy Director PHATA Multan.

Date of hearing: 24.12.2020.

Order

By means of the instant petition, the petitioner has assailed the vires of order dated 16.12.2020 passed by Respondent No. 1 whereby the Deputy Commissioner Vehari was directed to get the state land bearing Khasra No. 39/18 situated in Housing Scheme, Burewala, District Vehari, vacated from illegal occupation of encroachers within thirty days. The Director PHATA Multan Region and Deputy Director PHATA Sub-Region Multan/Secretary District Housing Committee Vehari were also directed to assist the Deputy Commissioner Vehari in all respects.

1. The report and parawise comments on behalf of Respondent No. 1, 3 and 4 have been furnished, which have been perused.

3. Admittedly, the petitioner has lodged a civil suit for declaration with regard to property in question against Province of the Punjab through DOR Vehari and TMA Burewala before the learned Civil Judge Vehari, which was decreed by the learned Civil Judge 1st Class Vehari vide judgment and decree dated 10.5.2020. On 15.3.2011, the respondents have challenged the said judgment and decree by filing a petition under Section 12(2) of CPC before the learned trial Court, wherein, issues were framed and the evidence was also recorded and consequently the said application was accepted vide judgment dated 31.3.2016. Feeling aggrieved, the petitioner has preferred an appeal against the said judgment before the learned District Judge Vehari, which came up for hearing before the learned Additional District Judge, Vehari, who vide order dated 20.4.2016 suspended the operation of judgment dated 31.3.2016. As the matter is pending adjudication before the Court of competent jurisdiction, therefore, this Court is of the view that the impugned order dated 16.12.2020 is liable to be set aside.

4. In view of above, as a matter is pending adjudication before the learned Additional District Judge, Vehari, therefore, the impugned order dated 16.12.2020 passed by Respondent No. 1 is set aside. However, the learned Additional District Judge, Vehari, seized with the matter is directed to conclude the same in accordance with the law by providing an opportunity of hearing to all concerned within stipulated period of 90 days.

1. With the above direction, the instant petition is disposed of.

(Y.A.) Petition accepted

PLJ 2021 Lahore 358

Present: Jawad Hassan, J.

Hafiz MUHAMMAD TAHIR ASHRAF ADVOCATE High Court--Petitioner

versus

PROVINCE OF PUNJAB, through Secretary EPO Punjab, and others--Respondents

W.P. No. 37805 of 2020, decided on 31.8.2020.

Punjab Environmental Protection Act, 1997 (XXXIV of 1997)--

----Ss. 12(3) & 22--Constitution of Pakistan, 1973, Art. 199--Writ of prohibition--Issuance of NOC--Construction of project--Specification of notification--Mandate of notification--Pendency of complaint against issuance of NOC--Direction to--If any of the conditions laid down in the Environment Protection Order (the “EPO”) is violated then the Approval/NOC issued can be revoked/cancelled under Regulation 20 of the Regulations--If the Petitioner has any grievance against the Impugned Decision or any other environmental issue, he has a remedy of filing an appeal under Section 22 of the Act before the Punjab Environmental Tribunal (the “Tribunal”)--Petition was disposed of.

[P. 359] A & B

Ch. Muhammad Asif Shahzad, Advocate for Petitioner.

Mr. Waseem Iqbal Butt, AAG (on Court’s call).

SahabzadaMuzaffar Ali, Advocate for Lahore Development Authority.

Mr. Muhammad Nawaz Manik, Director (Law), Environment Protection Agency alongwith Faheem Nasim, Additional Director (EIA), Environment Protection Agency and Kashif Sajjan, Assistant (Legal), Environment Protection Agency.

Date of hearing: 31.8.2020.

Order

The Petitioner, Hafiz Muhammad Tahir Ashraf, Advocate, has filed this writ of prohibition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the “Constitution”) to restrain the Director General, Environment Protection Agency, Punjab (the “EPA”), the Respondent No. 5, ‘from issuing Operational Approval No Objection Certificate (the “NOC”) to Muhammad Ameen, the Respondent No. 12.

1. Learned counsel submits that the decision dated 11th of April, 2018 (the “Impugned Decision”) issued by Respondent No. 5, the Director General, EPA, Lahore, for grant of the NOC to construct the project known as “Installation of Incinerator” by the Respondent No. 12 under Section 12 of the Punjab Environmental Protection (Amendment) Act, 2012 (the “Act”) read with the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000 (the “Regulations”) is illegal because it does not meet specifications given in Notification dated 14th of May, 2010 (the “Notification”) issued by the then Administrator/District Coordinator Officer, Lahore. He further submits that the Petitioner has knocked the door of this Court to keep the environment of this city free from industrial pollution as per mandate of the Notification.

2. Arguments decided. Record perused.

4. Section 12 of the Act provides that no proponent of “a project” (i) shall commence construction or (ii) operation unless he obtains the necessary approval/NOC from the EPA and these NOCs are issued subject to the Regulations. Moreover, under Section 12(3) of the Act read with Regulation 10 of the Regulations all effected parties of the Environmental Approval/NOC are given an opportunity of hearing and once the EPA hears all the parties, under Regulation 12 of the Regulations it will examine the Environmental Impact Assessment (the “EIA”) Report and then decide the matter with certain conditions as prescribed under Regulation 17 of the Regulations. If any of the conditions laid down in the Environment Protection Order (the “EPO”) is violated then the Approval/NOC issued can be revoked/ cancelled under Regulation 20 of the Regulations. These conditions are given after obtaining undertaking from the proponent of the project, therefore, if the Petitioner has any grievance against the Impugned Decision or any other environmental issue, he has a remedy of filing an appeal under Section 22 of the Act before the Punjab Environmental Tribunal (the “Tribunal”). The Hon’ble Supreme Court of Pakistan in the case of Lahore Development Authority through D.G. and others

versus Ms. Imrana Tiwana and others (2015 SCMR 1739) held that if the matter comes within the domain of the Tribunal then this Court cannot exercise its jurisdiction under Article 199 of the Constitution. This view was subsequently followed by this Court in the case of FeryalAli Gauhar and others versus Environmental Protection Agency, Punjab and others (2016 CLD 1011).

1. In view of the above backdrop, as according to learned counsel, the Petitioner’s complaint dated 23rd of July, 2020 (attached with this petition as Annexure-E/page-45) is already pending before the Respondent No. 5, Director General, Environment Protection Agency, Punjab, which was filed pursuant to order of this Court dated 16th of July, 2020 passed in the (earlier) Writ Petition No. 32035 of 2020, it is directed that the said complaint shall be decided by the Respondent No. 5 strictly in accordance with law (the Act and the Regulations) as well as the above observations of this Court within the timeframe provided under the Act. In case the Petitioner has any grievance against the decision taken by the Respondent No. 5 on his complaint, he may file an appeal under Section 22 of the Act before the Tribunal and if the Tribunal is not functional at the relevant time then necessary steps will be adopted by the concerned authority/ hierarchy in this regard on immediate basis so that appeal of the Petitioner may be decided in timely fashion.

Disposed of.

(Y.A.) Petition disposed of

PLJ 2021 Lahore 360

Present:Ali Akbar Qureshi, J.

MUHAMMAD SADIQ (deceased) through L.Rs. etc.--Petitioners

versus

DOOLAT BIBI (deceased) etc.--Respondents

C.R. No. 1235 of 2002, heard on 4.3.2016.

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

----Ss. 42 & 54--Civil Procedure Code, (V of 1908), S. 115--Suit for declaration and permanent injunction--Dismissed--Appeal--Allowed—Sale deed--Deniel of execution of sale deed by marginal witnesses--Failing to prove genuineness of sale-deed--Proving of fraud and forgery--Right of inheritance--Findings of appellate Court--Challenge to--Witnesses while appearing in witness box categorically stated on oath, that they have no knowledge of sale of suit land in favour of petitioner neither they signed sale deed nor witnesses of alleged transaction but astonishingly trial Court dismissed suit of respondents on ground which was not agitated or pleaded by parties--Marginal witnesses of sale deed were produced by respondents instead of petitioners and both witnesses denied execution of sale deed--In cross-examination, witnesses corroborated statement even in examination-in-chiefs therefore, appellate Court rightly appreciated record and particularly evidence available on file and correctly reached to conclusion, that respondents have succeeded to prove fraud and forgery committed by (deceased)--Even otherwise, petitioner remained failed to prove genuineness of sale deed--Property in question will be inherited by petitioner being only male descendant of Munshi son of Lahab--Since, this has not been agitated or made part of this litigation, therefore, petitioners, if had any right of inheritance, they may avail remedy available in law--Petition was dismissed. [Pp. 362 & 363] A, C & D

2002 SCMR 429 ref.

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

----Arts. 17 & 79--Proving of registered document--Needless to mention, that as per Articles 17 and 79 of Qanun-e-Shahadat, Order, 1984, registered or unregistered document has to be proved by adducing two marginal witnesses. [P. 363] B

Mr. Zabi Ullah Nagra, Advocate for Petitioners.

Nemo for Respondents.

Date of hearing: 4.3.2016.

Judgment

The petitioners, through this civil revision, challenge the judgment and decree dated 17.04.2002, passed by the learned appellate Court in a suit for declaration with permanent injunction filed by the respondents on the ground, that the suit land measuring 13 Kanal (fully described in the petition) was owned by husband of Respondent No. 1, namely Munshi; the predecessor of the Petitioners namely Muhlmmad Sadiq, by playing fraud and misrepresentation, transferred the land in his own favour vide registered sale deed dated 22.05.1982; subsequently the said land was mutated in the revenue record against Mutation No. 25 dated 30.04.1983; the sale fraudulently made by the predecessor of the petitioners came into knowledge of the respondents few days before filing the suit; the predecessor of the petitioners transferred the suit land measuring 13 Kanal along with his own land measuring 13 Kanal, total 26 Kanal, in favour of the Petitioners No. 2 and 3 through Mutation No. 50 dated 20.08.1991 and at the time of transfer of the suit land, the Petitioners No. 2 and 3 had full knowledge of the fraud and forgery. Lastly prayed, that the sale deed dated 25.05.;982, Mutation No. 25 dated 30.04.1983, Mutation No. 40 dated 21.08.1989 and Mutation No. 50 dated 20.08.1991 be declared illegal, unlawful and inoperative qua the rights of the respondents. The suit was contested by the petitioners/defendants through contentious written statement on the ground, that the husband of the respondent Doolat Bibi namely Munshi son of Lahab Din sold his share of land measuring 13 Kanal in favour of Muhammad Sadiq, predecessor of the petitioners, who subsequently sold to the Petitioners No. 2 and 3, and the sale was also given effect in the revenue record, therefore, no illegality or forgery, as alleged by the respondents, was committed. The Petitioners No. 2 and 3/defendants also filed their written statement wherein they alleged themselves the bona fide purchasers -of the suit land.

1. Necessary issues, out of the controversial pleadings of the parties, were framed by the learned trial Court; the learned trial Court, after recording evidence of the respective parties, dismissed the suit, against which an appeal was filed which was allowed and the suit filed by the respondents was decreed. Hence, this revision petition.

2. No one has entered appearance on behalf of the respondents despite issuing notices, therefore, the respondents are proceeded against ex-parte.

3. Decided. Record perused.

5. As per the record, Respondent No. 1 Doolat Bibi (deceased), who died issueless, challenged the sale deed and mutations on the ground of fraud and misrepresentation. The respondents produced P.W.1 and who are the marginal witnesses of the sale deed dated 22.05.1982, allegedly executed by Munshi son of Lahab Din, husband of deceased Dolat Bibi. Both the witnesses while appearing in the witness box categorically stated on oath, that they have no knowledge of the sale of the suit land in favour of the petitioner Muhammad Sadiq; neither they signed the sale deed nor witnesses of the alleged transaction but astonishingly the learned trial Court dismissed the suit of the respondents on the ground which was not agitated or pleaded by the parties. Needless to mention, that as per Articles 17 and 79 of Qanun-e-Shahadat, Order, 1984, the registered or unregistered document has to be proved by adducing two marginal witnesses whereas in this case, the marginal witnesses of the sale deed were produced by the respondents instead of the petitioners and both the

witnesses denied the execution of the sale deed. In cross examination, the witnesses corroborated the statement given in examination-in-chief, therefore, the learned appellate Court rightly appreciated the record and particularly the evidence available on the file and correctly reached to the conclusion, that the respondents have succeeded to prove the fraud and forgery committed by Muhammad Sadiq (deceased). Even otherwise, the petitioner Muhammad Sadiq remained failed to prove the genuineness of the sale deed.

6. The learned counsel for the petitioners after arguing the case at some length submitted, that admittedly the predecessor of the Petitioners namely Muhammad Sadiq was the real paternal nephew (بھتیجا) of deceased Munshi and as Doolat Bibi has also died, therefore, the property in question will be inherited by the petitioner Muhammad Sadiq, being the only male descendant of Munshi son of Lahab. Since, this has not been agitated or made part of this litigation, therefore, the petitioners, if had any right of inheritance, they may avail the remedy available in the law. I restrain myself to comment upon this aspect.

1. Even otherwise, the Hon’ble Supreme Court of Pakistan has observed in a judgment cited as Muhammad Hanif and another v. Muhammad Jamil Turk and 5 others (2002 SCMR 429), that the findings of the Appellate Courts are to be given weightage at the time of deciding the case by the higher forums.

2. Resultantly, this revision petition, having no force is dismissed with no order as to costs.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 363

Present: Abid Aziz Sheikh, J.

PATTOKI SUGAR MILLS LIMITED--Petitioner

versus

FEDERATION OF PAKISTAN etc.--Respondents

W.P. No. 128697 of 2018, decided on 12.1.2021.

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

----S. 2(46)(h)(i)(g)--Constitution of Pakistan, 1973, Art. 199--Manufacturing of white crystalline sugar--Issuance of notification--Fixation of value of domestically produced white crystalline sugar--Powers of board--Challenge to--Argument of petitioner that market price of white crystalline sugar being less than value fixed by Board, impugned notification is not applicable, is also misconceived--Admittedly petitioner’s supply of white crystalline sugar is covered under clause (a) of Section 2(46) of Act, where consideration of supply means open market price excluding tax--Under proviso to Section 2(46) of Act where value at which supply is made is higher than value fixed by Board, then value of goods shall unless otherwise directed by Board, shall be value at which supply is made--But it is neither provided nor can be construed in Section 2(46) of Act that if market price is lower than value fixed by Board then market price will prevail--First proviso being an exception to main provision, any such interpretation will render proviso redundant and meaningless--Petitioner counsel also argued that as proviso to clause (a) of sub-section (46) of Section 2 of Act has been confined to said clause (a), therefore, in same manner, first proviso shall also be confined to clause (g) of Section 2(46) of Act--This argument is baseless, as proviso to clause (a) is not an exception but merely defining taxable supply under clause (a) of Section 2(46) of Act, whereas first proviso under which impugned notification has been issued, is an exception to main Section 2(46) of Act, as already discussed in preceding paragraphs--Petitioner has merely challenged vires of notification and vires of proviso to Section 2(46) of Act, is not under challenge, whereby Board can fix value of taxable supply regardless of its market value--Therefore, it cannot be said that impugned notification was issued without jurisdiction or without lawful authority--Impugned notification being validly issued under first proviso to sub-section (46) of Section 2 of Act, is not ultra vires to law or Constitution of Islamic Republic of Pakistan, 1973 (Constitution)--Petition was dismissed.

[Pp. 369 & 370] B, C, D, E & F

Proviso--

----Scope of--It is settled principle of law that a “proviso” to a section has an overriding effect and control over whole section. [P. 368] A

Mr. Arshad Nazir Mirza, Advocate and Mr. Shezal Khan Burki, Advocate for Petitioner.

Malik Abdullah Raza, Advocate on behalf of Mr. Sarfraz Ahmad Cheema, Advocate for Respondents.

Date of hearing: 12.1.2021.

Judgment

In this constitutional petition, the petitioner has challenged the vires of SRO/Notification No. 812(I)/2016 dated 02.09.2016 (hereinafter referred to as notification), whereby value of white crystalline sugar was fixed at the rate of Rs. 60/- per K.G.

1. Relevant facts are that petitioner is involved in the manufacturing of white crystalline sugar. The Federal Board of Revenue (Respondent No. 2) in the exercise of powers under first proviso to clause (46) of Section 2 of the Sales Tax Act, 1990 (Act), issued impugned notification whereby the value of domestically produced white crystalline sugar has been fixed at the rate of Rs. 60/- per K.G. The petitioner being aggrieved has filed this constitutional petition.

2. The learned counsel for the petitioner submits that open market price of the white crystalline sugar being much lower than the value fixed by Respondent No. 2 in the impugned notification, the petitioner cannot be forced to pay sales tax on the said fixed price. He further submits that first proviso to sub-section (46) of Section 2 of the Act under which impugned notification was issued, relates to taxable supply of goods mentioned in third Schedule of the Act, with reference to retail tax mentioned under clause (g) of Section 2(46) of the Act and it is not an independent proviso to the main Section 2(46) of the Act. Adds that white crystalline sugar being not included in 3rd Schedule subject to retail tax, the value could not be fixed in respect of white crystalline sugar under the impugned notification. He further submits that clause (g) of Section 2(46) is immediately preceding to the first proviso, therefore, said proviso shall be deemed to be part of clause (g) only. He placed reliance on K.E.S.C. Progressive Workers Union through its Chairman and others vs. K.E.S.C. Labour Union through its General Secretary and others (1991 SCMR 888) and Collector of Custom Appraisement, Collectorate Customs House Karachi vs. M/s Gul Rehman Proprietor, M/s G. Kin Enterprises (2017 SCMR 339).

3. Learned counsel for the respondents on the other hand submits that impugned notification was issued under first proviso to Section 2(46) of the Act, whereby the Federal Board of Revenue could fix the value of any taxable supply. He submits that the first proviso is not merely the exclusive part of clause (g) of Section 2(46) of the Act but same is an exception to the main provision of Section 2(46) of the Act.

4. Arguments decided. The term “Value of Supply” has been defined under Section 2(46) of the Act. The moot issue in this case is regarding the interpretation of Section 2(46) of the Act. For convenience, Section 2(46) of the Act prevailing at the relevant time, when impugned notification was issued i.e. September 2016, is reproduced hereunder:

“Value of supply” means:

(a). in respect of a taxable supply, the consideration in money including all Federal and Provincial duties [and taxes], if any, which the supplier receives from the recipient for that supply but excluding the amount of tax:

Provided that:

(i) in case the consideration for a supply is in kind or is partly in kind and partly in money, the value of the supply shall mean the open market price of the supply excluding the amount of tax;

(ii) in case the supplier and recipient are associated persons and the supply is made for no consideration or for a consideration which is lower than the open market price, the value of supply shall mean the open market price of the supply excluding the amount of tax; [and]

[(iii) in case a taxable supply is made to a consumer from general public on installment basis on a price inclusive of mark up or surcharge rendering it higher than open market price, the value of supply shall mean the open market price of the supply excluding the amount of tax.]

(b) in case of trade discounts, the discounted price excluding the amount of tax; provided that the tax invoice shows the discounted price and the related tax and the discount allowed is in conformity with the normal business practices;

(c) in case where for any special nature of a transaction it is difficult to ascertain the value of a supply, the open market price;

(d) in case of imported goods, the value determine under Section 25 of the Customs Act, including the amount of customs-duties and central excise duty levied thereon;

(e) in case where there is sufficient reasons to believe that the value of a supply has not been correctly declared in the invoice, the value determine by the Valuation Committee comprising representatives of trade and the Inland Revenue] constituted by the [Commissioner]; and

[(f) in case the goods other than taxable goods are supplied to a registered person for processing, the value of supply of such processed goods shall mean the price excluding the amount of sales tax which such goods will fetch on sale in the market:]

[(g) in case of a taxable supply, with reference to retail tax, the price of taxable goods excluding the amount of retail tax, which a supplier will charge at the time of making taxable supply by him, or such other price as the Board may, by a notification in the Official Gazette, specify.

Provided that, where the Board deems it necessary it may, by notification in the official Gazette, fix the value of any imported goods or taxable supplies or class of supplies and for that purpose fix different values for different classes or description of same type of imported goods or supplies:

Provided further that where the value at which import or supply is made is higher than the value fixed by the Board, the value of goods shall, unless otherwise directed by the Board, be the value at which the import or supply is made;

1. There is an elaborate procedure mentioned in sub section (46) of Section 2 of the Act which envisages different situations in which the duty will fall differently assessed in accordance with the procedure delineated in the aforesaid provision. Section 2(46) of the Act provides for the duty paid transaction concept of value, which means that consideration in money including all Federal and Provincial duties and taxes, if any, which the supplier receives from the recipient for that supply but excluding the amount of tax. Section 2(46) of the Act constituted a substantive provision and the quantum of tax liability, is determined on the basis of value of taxable supply but the liability to pay tax under the charging section would arise only when such supply is made in furtherance of taxable activity.

2. Value of supply as is defined in sub section (46) of Section 2 supra can be ascertained in different modes namely consideration of money, inclusive of duties but excluding the amount of tax which the supplier receives from the recipient for the supply; the discounted price excluding the amount of tax in the case of trade discounts; the open market price in the cases where it is difficult to ascertain value of supply in view of special nature of the transaction; value according to Section 25 of the Customs Act, in the cases of imported goods inclusive of custom duties and federal excise duty; the value determined by Valuation Committee where value has not been correctly declared in invoice; price of goods which goods fetch on sale in open market in cases of goods other than taxable goods which are supplied to register persons for processing and in case of taxable supply, with reference to retail tax, the price of taxable goods excluding the amount of retail tax or such other price that the Board may by notification in the final gazette specifies. However, under first proviso to Section 2(46), the Board may by notification in the official gazette fix the value of any imported goods or taxable supply or classes of supplies.

3. There is no dispute that under first proviso to Section 2(46), the Board is empowered to fix the value of taxable supplies, however, stance of the petitioner is that said first proviso only relates to the fixation of taxable supplies with reference to retail tax under clause (g) of Section 2(46) of the Act and not to all different modes of taxable supply in Section 2(46) of the Act. Therefore, the question require determination is that whether first proviso to Section 2(46) of the Act, is an exception to main provision of Section 2(46) of the Act or merely to clause (g) thereof.

9. Regarding scope of “Proviso”, it is settled principle of law that a “proviso” to a section has an overriding effect and control over the whole section. Meaning thereby the function of a proviso is to exclude and take out certain cases from the rule to which it is a proviso. In other words to that extent the proviso modifies the main provision of the enactment. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment. Sometimes, however, as a precautionary measure, it is used to explain the general words of the Act and to exclude some ground of misinterpretation which would extend it to cases not intended to be brought within its operation or purview.

1. While explaining function of “Proviso”, in the case of Mst. Nawab Bibi v. Ch. Allah Ditta (1998 SCMR 2381), the honourable Supreme Court held as under:

“It is settled law that proper function of a proviso is to [except] and deal with a case which would otherwise fall within the general language of the main section, and its effect is confined to the rule or section to which a proviso has been added. The proper way to regard the proviso is as a limitation upon the effect of principal section or rule. A proviso, which is in fact and in substance a proviso, can only operate to deal with a case which, but for it, would have fallen within the ambit of the section to which the proviso is a proviso. To put it in another way the section deals with a particular field while proviso excepts or takes or carries out from the field a particular portion and therefore, it is perfectly true that before a proviso can have any application the section itself must apply.”

The august Court in K.E.S.C. Progressive Workers Union through its Chairman and others vs. K.E.S.C. Labour Union through its General Secretary and others (1991 SCMR 888), held that indeed it cannot be disputed, that a proviso must be construed and treated as if it were, not a parallel positive enactment, but a limitation on a proposition which is direct and objective. In Ibrar Hussain and other vs. Government of NWFP through Secretary, Board of Revenue and others (2001 SCMR 914), it is held as under:

“A proviso, on the other hand, is a clause added to an enactment for the purpose of acting as a restraint upon, or as the qualification of the generality of the language which it follows.”

In the cases of Abid Hussain v. Additional District Judge, Alipur, District Muzaffargarh (2006 SCMR 100), Messrs Hamdard Dawakhana v. Commissioner Income -Tax, Karachi (PLD 1980 SC 84), and Messra Tariq Brothers v. Collector of Customs (2005 PTD 186), it was held inter alia that a proviso is in the nature of an exception to the general rule and ought to be strictly construed.

1. In above case law, the plainest rule of statutory interpretation settled is that a proviso is to be regarded as something which except a particular case from a general principle. The effect of a proviso is to except something out of the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it.

2. When above settled rule of statutory interpretation apply to first proviso to Section 2(46) of the Act, the perusal of clause (g) of Section 2(46) of the Act shows that same relates to taxable supply with reference to retail tax only, whereas the first proviso is not only confined to retail tax of taxable supply but it is also an exception to value of imported goods and other classes of supply under Section 2(46) of the Act. Therefore, on face of it the first proviso is an exception to main section of Section 2(46) of the Act and not merely an exception to clause (g) of said section.

3. The above interpretation is also supported by the fact that through Finance Act, 2019 and 2020, clauses (h) and (i) were added to Section 2(46) of the Act and those clauses were added after clause (g) but before the aforesaid first proviso of Section 2(46) of the Act, which proves the intention of the legislation that the said proviso is an exception to even newly added clauses (h) and (i) inserted in Section 2(46) of the Act and not only confined to taxable supply subject to retail tax under clause (g) of the Act.

14. The next argument of the petitioner that market price of the white crystalline sugar being less than the value fixed by the Board, the impugned notification is not applicable, is also misconceived. Admittedly petitioner’s supply of white crystalline sugar is covered under clause (a) of Section 2(46) of the Act, where consideration of supply means open market price excluding tax. The proviso being an exception to clause (a), it cannot be given same meaning and scope as of clause (a). Under proviso to Section 2(46) of the Act where the value at which supply is made is higher than the value fixed by the Board, then value of goods shall unless otherwise directed by the Board, shall be the value at which the supply is made.

But it is neither provided nor can be construed in Section 2(46) of the Act that if market price is lower than the value fixed by the Board then market price will prevail. The first proviso being an exception to main provision, any such interpretation will render the proviso redundant and meaningless.

15. The petitioner learned counsel also argued that as proviso to clause (a) of sub-section (46) of Section 2 of the Act has been confined to said clause (a), therefore, in the same manner, the first proviso shall also be confined to clause (g) of Section 2(46) of the Act. This argument is baseless, as proviso to clause (a) is not an exception but merely defining the taxable supply under clause (a) of Section 2(46) of the Act, whereas first proviso under which the impugned notification has been issued, is an exception to main Section 2(46) of the Act, as already discussed in preceding paragraphs.

16. The learned counsel for the petitioner also contended that impugned notification is without jurisdiction. This argument is also misconceived. The petitioner has merely challenged the vires of the notification and vires of proviso to Section 2(46) of the Act, is not under challenge, whereby the Board can fix the value of taxable supply regardless of its market value. Therefore, it cannot be said that impugned notification was issued without jurisdiction or without lawful authority.

17. In view of above discussion, the impugned notification being validly issued under first proviso to sub-section (46) of Section 2 of the Act, is not ultra vires to the law or the Constitution of Islamic Republic of Pakistan, 1973 (Constitution), hence this petition is dismissed.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 370 (DB)

Present: Abid Aziz Sheikh and Mirza Viqas Rauf, JJ.

AMBREEN MOAZZAM ALI--Appellant

versus

AHMAD ZIA CH. etc.--Respondents

RFA No. 58154 of 2019, decided on 12.1.2021.

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

----S. 12--Civil Procedure Code, (V of 1908), S. 96--Suit for specific performance--Dismissed--Non-payment of outstanding amount--Agreement to sell--Direction of trial Court to appellant for deposit of balance amount and affixation of Court fee--Non-depositing of balance amount and Court fee--Conduct of appellant--Disentitlement of appellant for equitable relief--Challenge to--There is no dispute that in suit for specific performance filed by appellant/ plaintiff, it was her own claim that total consideration amount under agreement to sell was Rs. 7,50,00,000/- out of which, only Rs. 1,50,00,000/- was paid and balance outstanding amount was Rs. 6,00,00,000/--When time fixed in agreement to sell approaches plaintiff/appellant should be ready, and show his bonafide by depositing total sale consideration in Court to demonstrate his readiness and willingness for performance of sale agreement and any contumacious omission in this regard would entail dismissal of suit for specific performance being an equitable relief--Trial Court specifically directed appellant to deposit balance consideration amount of Rs. 6,00,00,000/- alongwith proper Court fee as per valuation of suit within a period of two months, but neither balance amount was paid nor Court fee was affixed by appellant. Conduct of appellant shows that he was not serious in performing his agreed part of contract or in pursuing his remedy of specific performance--When this conduct of appellant adjudged on law settled and touch stone of equitable principle on subject, same disentitle appellant of equitable relief of specific performance--Argument of counsel for appellant that some of share-holders were abroad (who were not even party to lis) or her legal counsel did not affix Court fee will not absolve appellant from complying with law settled by Hon’ble Supreme Court and specific direction of learned trial Court to deposit balance consideration amount or affix Court fee within stipulated time period--Conduct of appellant was contumacious in not depositing balance consideration amount, hence he was lawfully denied equitable relief of specific performance--Appeal was dismissed. [Pp. 372, 375 & 376] A, B, C, D & E

2017 SCMR 2022, 2020 SCMR 171, 2020 MLD 1969, 2020 YLR 2024, 2019 CLC 1866 and 2020 CLC 300.

Mr. Muhammad Tariq Bashir Awan, Advocate for Appellant.

Ch. Muhammad Sarwar, Advocate for Respondents.

Date of hearing: 13.1.2021.

Judgment

Abid Aziz Sheikh, J.--This appeal is directed against order and decree dated 03.9.2019 passed by learned Civil Judge, Lahore, whereby suit for specific performance filed by appellant against respondents was dismissed.

1. Relevant facts are that appellant filed suit for specific performance against respondents on the basis of agreement to sell dated 15.4.2019. As per averment of the plaint, in the agreement to sell, the total consideration amount was of Rs. 7,50,00,000/- out of which, Rs. 1,50,00,000/- was paid and remaining balance amount was of Rs. 6,00,00,000/-. The learned trail Court vide order dated 03.7.2019 directed the appellant/plaintiff to deposit remaining balance amount of Rs. 6,00,00,000/- within a period of two months along with Court fee of Rs. 15000/-. Despite this direction, neither balance amount was deposited nor Court fee was submitted, hence suit of the appellant was dismissed through impugned order/decree. The appellant being aggrieved has filed this appeal.

2. Learned counsel for the appellant submits that there were five share-holders who agreed to buy the suit property and some of those share-holders being abroad, the balance consideration amount could not be arranged. He further submits that amount of Court fee was already handed over to learned counsel for the appellant who did not submit the same in Court.

3. Learned counsel for the respondents on the other hand submits that despite direction of learned trial Court, neither balance consideration was paid nor Court fee was affixed, therefore, suit was lawfully dismissed.

5. Arguments decided. There is no dispute that in suit for specific performance filed by the appellant/plaintiff, it was her own claim that total consideration amount under the agreement to sell dated 15.4.2019 was Rs. 7,50,00,000/- out of which, only Rs. 1,50,00,000/- was paid and balance outstanding amount was Rs. 6,00,00,000/. The Hon’ble Supreme Court in Hamood Mehmood vs. Mst. Shabana Ishaque etc (2017 SCMR 2022) held that where plaintiff or defendant seeks enforcement of agreement under the Specific Relief Act, 1877 (Act), it is mandatory that the balance amount be deposited in the Court on the first appearance or the date of institution of the suit after permission of Court and any omission in this regard would entail dismissal of suit.

1. The similar view was also expressed in following case law:

(i) In case of Messrs Kuwait National Real Estate etc vs. Messrs Education Excellence etc, (2020 SCMR 171), it is held as under:-

“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. Failure of a plaintiff to meet the said essential requirement disentitles him to the relief of specific performance, which undoubtedly is a discretionary relief”.

(ii) In case of Aqeel Feroz vs. Shahid Jamil Sethi etc, (2020 MLD 1669), it is held as under:

“The Hon’ble apex Court has repeatedly held that for a suit in respect of specific performance of agreement to sell, the plaintiff has to show his bona fide by depositing full sale consideration in the Court and if he fails in showing said bonafide, his suit is liable to be dismissed straightforward”.

(iii) In case of Muhammad Kashif Vohra vs. Muhammad Ismail etc, (2020 YLR 2024), it is held as under:

“In this case, an order for depositing the sale consideration in Court had been made which order was never challenged by the plaintiff. The plaintiff’s argument that he had made ready the pay-orders of the sale consideration on 18.11.2014, is of no help to him when he never deposited those pay-orders in Court. In other words, even if the plaintiff was able to perform the contract, he was never ‘ready’ and ‘willing’ to do so, and therefore, he disentitled himself from exercise of discretion in his favour. In such circumstances, and especially when it is not the case of the plaintiff that a part-payment was made by him under Annexure-B, the question of granting compensation under Section 19 of the Specific Relief Act, 1877 too does not arise”.

(iv) In case of Muhammad Zafar Iqbal vs. Hameeda Naz etc, (2019 CLC 1866), learned Court while dismissing the revision petition held that:

“In the present case, no such exertion was made by the petitioner/plaintiff, rather when the Court ordered him to deposit the balance consideration, he firstly lingered on the matter and requested for extension of time, which was granted, but later on he agitated the order through appeal and when failed to get favourable decision, filed the instant civil revision and contumaciously kept on disobeying all such orders”.

(v) In case of Ghulam Nabi Shaikh vs. Firdous Matri etc, (2019 YLR 223), the learned Court observed that:

“However, in instant case, when the learned Single Judge vide order dated 24.3.2004, directed the Appellant to deposit the remaining sale consideration before the Nazir of this Court, he failed to deposit the amount in the Court even though the suit remained pending up till 14.12.2017. It is also important to note that during the period when the suit was dismissed for non- prosecution, the subject property was sold out to a new purchaser by way of a registered document, which was further made the Appellant disentitled for grant of such discretionary relief of specific performance in his favour”.

(vi) In case of Hamood Mehmood vs. Mst. Shabana Ishaque etc, (2018 YLR 713), while dismissing the suit, learned Sindh High Court held as under:

“If the present proceeding is analyzed, an undisputed position that emerges is that on the one hand, the plaintiff for quite some time enjoyed the ad-interim injunctive relief in his favour, but despite giving ample opportunities and chances to comply with the Court orders, on the other hand, he contumaciously kept on defying all such directions/orders. After a statement of defendant No. 3-D.H.A., with regard to the ownership of present defendant/vendor, which has been made part of the order dated 05.10.2017, no justifiable reason remained with present plaintiff for defying/violating the Court orders by not depositing the balance sale consideration”.

(vii) In case of Shaikh Muhammad Asghar vs. Muhammad Abdullah etc, (2018 CLC 1409), it is held that:

“The plaintiff in view of the foregoing circumstances, since, deliberately and intentionally has avoided/omitted to perform his agreed part of contract which act alone, in my view, has disentitled the plaintiff to have a decree in his favour for specific performance. Consequently, plaintiff’s suit for specific performance filed on 17.5.2013 is dismissed but with no order as to costs”.

(viii) In case of Shahzad Nabi vs. Naseer Turabi etc. (2020 CLC 300), while dismissing the suit for specific performance, it is held that:

“The above act on the part of plaintiff is also adversely affected by another judgment of Apex Court handed down in Hamood Mehmood case-2017 SCMR Page 2022, wherein, it is held, that now it is mandatory in a suit for specific performance, that balance amount be deposited in Court, otherwise it would result in dismissal of the suit. The overall conduct of present plaintiff as discussed hereinabove does fall within the contumacious/omission as mentioned in the above reported case, entailing an adverse consequence for plaintiff. Hence, Issue No. 3 is answered accordingly”.

7. The law settled in the above case law is that when the time fixed in the agreement to sell approaches the plaintiff/appellant should be ready, and show his bonafide by depositing the total sale consideration in the Court to demonstrate his readiness and willingness for performance of the sale agreement and any contumacious omission in this regard would entail dismissal of the suit for specific performance being an equitable relief.

8. In the present case, admittedly, learned trial Court specifically directed the appellant on 03.7.2019 to deposit balance consideration amount of Rs. 6,00,00,000/- along with proper Court fee as per valuation of the suit within a period of two months, but neither balance amount was paid nor Court fee was affixed by the appellant. The conduct of the appellant shows that he was not serious in performing his agreed part of the contract or in pursuing his remedy of specific performance. When this conduct of the appellant adjudged on the law settled and the touch stone of equitable principle on the subject, the same disentitle the appellant of equitable relief of specific performance. In the circumstances, learned trial Court has lawfully followed the dictum laid by the Hon’ble Supreme Court and various learned High Courts in judgments referred supra and dismissed the suit.

9. The argument of learned counsel for the appellant that some of the share-holders were abroad (who were not even party to the lis) or her legal counsel did not affix the Court fee will not absolve the appellant from complying with the law settled by Hon’ble Supreme Court and specific direction of learned trial Court to deposit balance consideration amount or affix Court fee within stipulated time period. From above facts, it can safely be concluded that the conduct of the

appellant was contumacious in not depositing the balance consideration amount, hence he was lawfully denied the equitable relief of specific performance.

1. In view of above discussion, no illegality and infirmity is found in the impugned order/decree, therefore, this appeal is dismissed with no order as to cost.

(Y.A.) Appeal dismissed

PLJ 2021 Lahore 376

Present:Muhammad Sajid Mehmood Sethi, J.

MUHAMMAD AZAM and 6 others--Petitioners

versus

ADDITIONAL DISTRICT JUDGE, KASUR and 29 others--Respondents

W.P. No. 64418 of 2019, decided on 4.11.2020.

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

----S. 115 & O.VII, R.11--Scope of--Power of--Controversy--Revision and appeal are two different fields--Appeal is continuation of original suit and Appellate Court has got ample power to thrash out entire evidence and scrutinize available documents in light of arguments advanced by respective parties--On other hand, scope of revision is limited to some illegality, material irregularity or jurisdictional defect in impugned order judgment--A bare perusal of Section 115, CPC clearly shows that scope of revision is limited to above points. [P. 378] A

M/s. Muhammad Saim Chaudhry and Muhammad Yar Gondal, Advocates for Petitioners in this as well as connected petitions.

Mr. M. Amir Javed Bhatti, Advocate for Respondents Nos. 3 to 8.

Date of hearing: 4.11.2020.

Order

This consolidated order shall dispose of instant writ petition along with following connected petition as common questions of law and facts are involved in these cases:

W.P. No. 64423 of 2019 titled Muhammad Azam and others v. Additional District Judge, Kasur & others.

1. Through instant petition, petitioners have assailed judgment dated 08.10.2019, passed by learned Additional District Judge, Kasur, to the extent of additional directions, which were issued while dismissing revision petition challenging order dated 21.06.2018, passed by learned Civil Judge, Kasur, filed by Respondents No. 3 to 8.

2. Brief facts of the case are that petitioners filed suit for possession through partition. During proceedings of the suit, Respondents No. 3 to 8 filed application under Order VII Rule 11, CPC, which was dismissed vide order dated 21.06.2018. Feeling aggrieved, petitioners filed revision petition before learned Additional District Judge, which was also dismissed vide judgment dated 08.10.2019, with above-reproduced directions. Hence, instant petition.

3. Learned counsel for petitioners submits that while passing impugned judgment, learned Revisional Court has stayed the proceedings of learned Trial Court and issued certain direction to the ADLR, which is absolutely without jurisdiction and unsustainable in the eye of law. In support, he has referred to Gul Rehman v. Gul Nawaz Khan (2009 SCMR 589). When confronted, learned counsel for respondents could not give any satisfactory reply as to whether learned Revisional Court could give any such direction while dismissing revision petition, especially when the issue was only to the extent of vires of order passed by trial Court dismissing application under Order VII Rule 11, CPC.

4. Heard. Available record perused.

5. Perusal of record shows that the only controversy agitated before learned Revisional Court was relating to the vires of order dated 21.06.2018, passed by Trial Court, whereby application under Order VII Rule 11, CPC, filed by Respondents No. 3 to 8, was dismissed. However, while upholding the aforesaid order, learned Revisional Court has made following additional observations, which are beyond its scope and the same are reproduced as under:

“6. ... ADLR shall conclude the proceedings under progress and issue the fresh fard regarding the entitlement of the parties in the suit land for partition purpose till then suit shall not proceed ....”

Learned Revisional Court, while dismissing revision petition, touched the controversy which was not agitated before it as direction to this extent could only be issued by learned trial Court where the lis

was pending. Since learned Revisional Court was not authorized to pass any such directions, same are without any lawful authority.

7. Needless to say that revision and appeal are two different fields. Appeal is the continuation of original suit and Appellate Court has got ample power to thrash out the entire evidence and scrutinize the available documents in the light of arguments advanced by the respective parties. On the other hand, scope of revision is limited to some illegality, material irregularity or jurisdictional defect in the impugned order/judgment. A bare perusal of Section 115, CPC clearly shows that scope of revision is limited to the above points. Reference is made to Gul Rehman’s case supra.

1. Resultantly, instant petition, along with connected petition, is allowed and impugned judgment is modified to the extent as indicated in para 6 supra.

(R.A.S.) Petition allowed

PLJ 2021 Lahore 378

Present:Shahid Karim, J.

Haji MUHAMMAD AMIN and 3 others--Petitioners

versus

LAHORE DEVELOPMENT AUTHORITY through Director General 2 others--Respondents

W.P. No. 164578 of 2018, decided on 3.12.2020.

Constitution of Pakistan, 1973--

----Art. 199--Acquisition of land--Entitlement for compensation--Non-challenging of acquisition of land--Previous litigation--Non-producing of cogent material for issuance of award--Challenge to--Mutation of land was made in name of Federal Govt., thereafter different chunks of land were got allotted by various persons either through allotment orders by filing Mukhbari application--It has been admitted that land measuring 406 Kanal-1 Marla was acquired by LDA for Mustafa Town Housing Scheme and this was done in year 1977--It is indeed surprising that petitioners have not agitated issue priorly and have chosen to approach this Court in year 2018--Acquisition was challenged by persons affected by it and matter was finally decided by Supreme Court of Pakistan and allotments made by Settlement Authorities were declared null and void--On other hand, allotment made in favour of Punjab University was declared to be valid under law--It is clear that land in question has historical facts and previous litigation has also ensued amongst affected parties--Petitioners have not produced any cogent and uncontrovertcd material which would show that an award was made in their favour by Land Acquisition Collector--At best, this is a matter which involves resolution of disputed issues and controversies and ought to be decided by Courts of plenary jurisdiction--Petition was dismissed. [Pp. 379 & 380] A, B, C & D

Mr. Muhammad Aslam Zar, Advocate for Petitioners.

Sahibzada Muzaffar Ali Advocate for Respondents-LDA.

Date of hearing: 3.12.2020.

Order

This constitutional petition seeks a direction to the respondents to pay the compensation to the petitioners for the alleged acquisition of the land acquired for Mustafa Town Scheme.

2. The learned counsel for LDA has filed the reply according to which LDA seriously disputes the entitlement of the petitioners to compensation of the land in question as according to the learned counsel the petitioners-have yet to prove their title to this property. By reference to the contents of the reply, learned counsel stated that the issue regarding the land subject matter of this petition reached the Supreme Court of Pakistan and was decided in the year 1971. Subsequently, the mutation of the land was made in the name of the Federal Government. Thereafter different chunks of the land were got allotted by various persons either through allotment orders by filing Mukhbari application. The detail of the allotment has also been brought forth in the reply. It has been admitted that land measuring 406Kanal-1 Maria was acquired by LDA for Mustafa Town Housing Scheme and this was done in the year 1977. It is indeed surprising that the petitioners have not agitated the issue priorly and have chosen to approach this Court in the year 2018. The acquisition was challenged by the persons affected by it and the matter was finally decided by the Supreme Court of Pakistan and the allotments made by the Settlement Authorities were declared null and void. On the other hand, allotment made in favour of Punjab University dated 29.3.1974 was declared to be valid under the law.

3. From the above, it is clear that the land in question has historical facts and previous litigation has also ensued amongst the affected parties. The petitioners have not produced any cogent and uncontrovertcd material which would show that an award was made in their favour by Land Acquisition Collector. At best, this is a matter

which involves resolution of disputed issues and controversies and ought to be decided by the Courts of plenary jurisdiction. In view of the above, this petition is without merit and is dismissed.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 380

Present: Ch.Muhammad Iqbal, J.

FAQIR MUHAMMAD RANA--Petitioner

versus

COMMISSIONER LAHORE DIVISION LAHORE and 3 others--Respondents

W.P. No. 5644 of 2014, decided on 10.11.2020.

Land Acquisition Act, 1894 (I of 1894)--

----S. 4--Constitution of Pakistan, 1973, Art. 199--Acquisition of land--Physical possession was taken out--Demolishing of building--Issuance of award--Maintainability--Land of petitioner was acquired after fulfillment of all legal formalities, possession of acquired land had been taken and award had been issued--As per settled law that after issuance of award ordinarily constitutional petition is not maintainable--Petition was dismissed.

[P. 380] A

2005 SCMR 1320, PLD 2008 SC 335, 2005 YLR 1133, 2007 CLC 107, 2018 CLC 449, PLD 1965 Dacca 36 and 1997 SCMR 296.

Mr. Sukrat Mir Basit, Advocate for Petitioner.

Sahibzada Muzaffar Ali, Advocate for Respondents.

Date of hearing: 10.11.2020.

Order

Through this single order, I intend to decide the above titled writ petition along with connected Writ Petition Nos.5635, 5637 & 5641 of 2014 as common questions of law and facts are involved in these cases.

1. Brief facts of the case are that the petitioner Faqir Muhammad Rana was owner of a constructed building bearing Property No. SW.94-R-19, measuring 11-Marias 25 sq.ft situated at 19 Main Multan Road, Lahore. Respondents issued notification under Section 4 of the Land Acquisition Act, 1894 published on 19.06.2013 for acquisition of the land for the purpose of “Dualization of Road from LOS Ferozpur Road to Multan Road by covering Cantt. Drain Lahore.” while second notification dated 17.08.2013 under Section 4 of the Land Acquisition Act was published in the same Gazette on 21.07.2013. In both the above notifications land measuring 3 Marlas 7 Sq. Ft. comprising Khasra Nos. 1655, 1656, 1657 and 1658 was acquired. Third Notification under the same provision of law was issued on 06.11.2013 and physically possession of land measuring 03-Marias, 7 sq.ft comprising Khasra No. 1653 was taken but the complete building of the petitioners was demolished. Petitioner has filed instant writ petition with the following prayer:

“In view of the above, it is respectfully prayed as under:

(i) The demolition exercise conducted by the functionaries under the control of Respondent Commissioner and LDA in relation to a portion of building structure constructed on Khasra No. 1653, 1654, 1655 and 1656 ibid, is an unlawful act liable to be so declared.

(ii) Petitioners are entitled to be treated as owners of the land comprised in Khasra Numbers mentioned above, which were not included either in operational Section 4 Notification or in the subsequent Section 17(4) Notification by virtue of which physical possession of 3-marlas 7 sq.ft. was taken for the purpose of extension of road as per Drawings prepared by the Joint Venture engaged by Respondent LDA.

(iii) Respondents be restrained from interfering in the peaceful enjoyment and physical possession of the land described above in which full and absolute title still vests in the Petitioner.”

1. I have decided the learned counsels for the parties at full length and gone through the entire record with their able assistance.

2. The Khasra Nos. 1653-min, 1654-min, 1655-min, 1656-min, 1657-min & 1658-min of Mouza Nawan Kot were acquired by the LDA for expansion and dualization of Road from LOS Ferozpur Road to Multan by covering Cantt. Drain Lahore. Notification under Section 4 of the Land Acquisition Act, 1894 was issued on 18.06.2013 which was published in Punjab Gazette on 19.06.2013 whereafter corrigendum notification was also issued on 17.08.2013 which was published in the Punjab Gazette on 21.8.2013 whereby land measuring 3-Kanals and 07-Marlas of above Khasra numbers along with its respective land of Mouza Mozang and Nawan Kot, Tehsil and District Lahore was added in the acquisition. Another notification under Section 4 to the extent of remaining land measuring 3-Marlas 7-sq.ft of Khasra No. 1653 was issued on 14.10.2013 which was published in Punjab Gazette on 06.11.2013. Notification under Sections 17(4) and 6 was issued on 05.10.2013 which was published in the Punjab Gazette on 08.10.2013. Another Notification under Sections 17(4) and 6 of Khasra No. 1653 measuring 3-marlas 7-sqft was issued on 31.01.2013 which was published in the Punjab Gazette on 31.12.2013, possession was taken and award under Section 11 of the Land Acquisition Act, 1894 was announced on 09.12.2013 and 04.02.2014. After issuance of Notifications under Section 4 and 17(4) & (6) the formal possession of land measuring 11-Marlas 25-sqft, comprising over Khasra Nos.1655, 1656, 1657 & 1658 was taken and existing structure was removed.

5. Admittedly, the land of the petitioner was acquired after fulfillment of all the legal formalities, possession of acquired land had been taken and award had been issued. As per settled law that after issuance of the award ordinarily constitutional petition is not maintainable. An alike controversy has been resolved by the Hon’ble Supreme Court of Pakistan in a case titled as Habib Ullah vs. Land Acquisition Collector and others (2005 SCMR 1320) wherein it is held as under:

“We have considered the contentions advanced by the learned counsel for the petitioner and have gone through the entire documents annexed with this petition. Admittedly the award in this case for orchards was announced on 4-6-1999. The petitioner in the circumstances had got statutory remedy of reference provided under Section 18 of the Act. The determination of compensation for trees is admittedly a question of fact which certainly cannot for be made in the exercise of Constitutional jurisdiction. The argument of the learned counsel that the provision of Section 17(3) of the Act had been violated is devoid of any force, as already stated the award in the terms has already been announced qua orchards. Learned counsel for the petitioner has failed to point out any illegality or legal infirmity in the impugned judgment warranting interference in the impugned judgment.”

Same principle has been emphasized in Muhammad Ashiq and another vs. Water and Manpower Development Authority, Lahore through Chairman, WAPDA House and another (PLD 2008 SC 335).

In another case titled as Mahmud Khan and another versus Government of the Punjab through District Collector, Lahore and 2 others (2005 YLR 1133) wherein it is observed as under:

“The land acquisition Collector has announced the Supplementary Award after issuing/publishing the Corrigendum to Notification under Section 17(4) & (6), therefore, petitioners have alternative remedy to file a reference for enhancement of the compensation under the provisions of the Land Acquisition Act, 1894 before the competent authority/competent Court, therefore, Constitutional petition is not maintainable as per law laid down by the Honourable Supreme Court in Ch. Muhammad Ismail’s case PLD 1996 SC 246. It is also a good ground not to exercise discretion in favour of the petitioners in view of the pendency of the reference before the Civil Court keeping in view ground of the reference, which is mentioned above as per law laid down by the Honourable Supreme Court in Ch. Tanbir Ahmad Siddiky v. Province of East Pakistan and others PLD 1968 SC 185.”

Reliance can also be placed on the case titled as Ch. Nazir Ahmad & 2 others versus Province of Punjab through District Officer (Revenue), Lahore & 5 others (2007 CLC 107) wherein it is held as under:

“29. The learned counsel appearing on behalf of the private land owners whose land has been included in the notifications under Section 4 of the Punjab Land Acquisition Act, 1894 have expressed their fear that fair compensation shall not be paid. Suffice it to say that fair compensation can only be determined after a factual inquiry requiring the recording of evidence which is not possible in the exercise of constitutional jurisdiction by this Court. Furthermore, adequate alternative remedies are available under the Punjab Land Acquisition Act, 1894, whereby the grievance, if any, of such land owners can be redressed as and when the occasion arises.”

This controversy has been resolved by this Court in a case titled as Mujaddad Ashraf and 5 Others vs. Commissioner Lahore Division, Lahore & 3 others (2014 CLC 230) wherein it is held as under:

“6. Undisputedly, the above said notifications have been issued by the Government of the Punjab aimed to acquire the land of the petitioners and others for the MBRTS Project. There is no denial that the said Project is for public purpose. Under the Act, the Government has the power to acquire the land for public purpose. Upon issuance of notice under Section 17 (4) of the Act, the provisions of Sections 5 and 5-A of the Act are done away with, upon a direction of the Commissioner. The MBRTS is a project aimed at planned development of the city. The land was required urgently, hence, provisions of Section 17(4) were involved, meaning that the requirements of Sections 5 and 5-A were dispensed with. In this regard it has been held in case of Muhammad Ashiq and another v. Water and Manpower Development Authority, Lahore through Chairman, WAPDA House and another (PLD 2008 SC 335) that Section 17 (4) of the Act was based on the subjective satisfaction of the Competent Authority to apply the provisions or not according to the given circumstances which was not available for scrutiny by the Court. Therefore, the petitioners’ grievance that notices should have been served after the notification under Section 17 (4) is without basis. As to the procedure followed by the respondent for acquisition it is in accordance with the Act. In this regard it has been held in Suo Motu case No. 13 of 2007 reported as PLD 2009 SC 217 as under:

“The Act provides a systematic scheme for taking measurements of the property, assessment of its value and payment of compensation to the person interested, besides remedy for adjudication of rights of aggrieved persons in accordance with well- known norms of administration of justice. In the case involving any dispute of measurement of property or determination of its market value, the Act provides a remedy through a reference by the Collector to the Civil Court for settlement of these disputes where parties have the opportunity to adduce evidence in support of their stance”.

1. So far as the contention of the petitioners that the consent of the petitioners should have been sought before acquiring the land, suffice it to say that when the provisions of Section 17(4) of the Act are invoked and the urgency is declared, no prior notice or intimation to the owners of the land is required.”

In another case titled as Aish Bahadar and others versus District Collector, Sahiwal and others (2014 YLR 2266) wherein it is observed as under:

“15. The above reproduced prayer clearly shows that the claim of the petitioner is only of compensation for which the petitioners have alternate remedy in the form of reference under Section 18 of the Land Acquisition Act, 1894. The present writ petitions are therefore, liable to be dismissed and ordered accordingly.”

In a case titled as Pir Ishfaq Ahmed versus Deputy Commissioner/Land Acquisition Collector, Charsadda and another (2018 CLC 449) wherein it is observed as under:

“5. Notwithstanding plea of the respondents that acquisition of the land measuring 14 marla was for the public purpose namely “dualization of Charsadda-Tangi road I/C Utmanzai Bypass Mouza Sherpao, Tehsil Tangi, District Charsadda”, as construction of drain was also a part of dualization of Charsadda-Tangi road, the petitioner had the alternate adequate remedy of raising objection to the acquisition of land under Section 5-A of the Act of 1894 within 30 days of the issuance of notification under Section 4 of the Act of 1894 and also another remedy of raising objection under Section 9 of the Act of 1894 after issuance of notice under the said section of law. The petitioner, however, missed not only the opportunity of availing the remedy of raising objection to the acquisition on both the occasions, but also failed to require the Collector to make reference under Section 18 of the Act of 1894 after award under Section 11 of the Act of 1894 was announced on 24.10.2016; and instead, moved the instant writ petition, which was not maintainable in view of the other adequate remedies, referred to above, available to the petitioner.”

In another case titled as Rana Zahid Habib and 5 others versus Government of the Punjab and 3 others (2019 CLC 654) wherein the learned Divisional Bench of this Court held as under:

“5. In view of the above, the learned Single Judge has rightly observed that the constitutional petition is not maintainable where alternate remedy is provided under a Statute and has relied upon the case titled Habib Ullah v. Land Acquisition Collector and others (2005 SCMR 1320).

Reliance can also be placed on the cases titled as Jan Meah vs. Deputy Secretary to Government of East Pakistan, Revenue (Requisition) Department, DACCA and others (PLD 1965 Dacca 36) and Muhammad Afzal Bhatti and 17 others vs. Province of Punjab through Collector, Rawalpindi and 4 others (1997 SCMR 296).

1. In view of above, these writ petitions are dismissed being not maintainable. However, the petitioners, if so desire, may avail remedy as provided under the Land Acquisition Act, 1894.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 388 (DB) [Bahawalpur Bench Bahawalpur]

Present:Muhammad Sajid Mehmood Sethi and Jawad Hassan, JJ.

MUHAMMAD ISMAIL--Appellant

versus

MUHAMMAD ADIL--Respondent

E.F.A.No. 1 of 2018-BWP, decided on 19.1.2021.

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

----Ss. 22 & 47--Filing of suit for permanent and mandatory

injunction--Transfer of motor vehicle--Ex-parte decreed--Execution proceedings--Relationship of customer and financial institution--Challenge to--Appellant filed suit for permanent and mandatory injunction before Banking Court which was somehow decreedexecution of which was filed and consigned to record by Banking Court through impugned order--It is settled law that suit for permanent and mandatory injunction cannot be filed before Banking Court rather to institute a suit before Banking Court--It is clear that Appellant was not customer of Bank rather it was Respondent who availed loan facility in respect of Vehicle and paid monthly installments and in this respect NOC was issued in his favour by Bank--Suit was filed by Appellant against Respondent and Bank but perusal of decree reveals that it was decreed ex-parte to extent of present Respondent however, contentions of Bank were not considered at time of passing of decree rather same was taken into account during execution proceedings--Banking Court in impugned order noted that loan was obtained by Respondent from Bank and not by Appellant because there exists no relationship of customer and financial institution between Appellant as per Section 9 of Ordinance and mentioned definitions--Therefore, Banking Court has rightly passed impugned order--No illegality in impugned order which has been passed in consonance with spirit of law, Ordinance, hence, does not call for interference by us in instant appeal--Petition was dismissed. [Pp. 390, 392 & 393] A, B, C & D

2017 CLD 995 and 2014 SCMR 322 ref.

Mr. Muhammad Tayyab Zameer Khan, Advocate for Appellant.

Nemo for Respondent.

Date of hearing: 19.1.2021.

Order

The Respondent has not chosen to enter appearance despite issuance of notice through ordinary mode as well as through courier service therefore, he is proceeded against ex-parte.

1. Through the instant Appeal, filed under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the “Ordinance”), the Appellant seeks to set-aside order dated 29.09.2017 (the “impugned order”) passed by the Judge Banking Court, Bahawalpur (the “Banking Court”) being the Executing Court whereby execution petition was consigned to record room.

2. The relevant facts as mentioned in the appeal are that a suit was filed by the Appellant against the Respondent and Meezan Bank Limited (the “Bank”) before the Banking Court in respect of transfer of motor vehicle Toyota Corolla Saloon/XLI-2006 (the “Vehicle”) on the basis of an agreement to sell executed between the Appellant and the Respondent. The said suit was decreed vide order dated 31.01.2017. Execution petition was filed on 02.04.2017 which was consigned to record by the Banking Court through the Impugned Order. Hence this appeal.

3. Learned counsel for the Appellant inter alia submitted that the Banking Court has not taken into consideration the true facts and circumstances of the case while consigning the execution petition to record; that the impugned order is against law and facts; that the Banking Court has failed to appreciate the fact that it cannot go beyond the decree as it was passed after fulfilling all the requirements of law and as such the Banking Court was bound to execute the decree as it is. The counsel for the Appellant has placed reliance on “Messrs Capital Farms, Islamabad versus National Development Finance Corporation” (PLD 1996 Lahore 99), “Muhammad Hussain and another Versus Muhammad Shafi and others” (2004 SCMR 1947), “Mst. Khair-un-Nisa Channa versus Federation of Pakistan and others” (2004 SCMR 1714), “Sardar Ahmed Yar Khan Jogezai and 2 others versus Province of Balochistan through Secretary, C&W Department” (2002 SCMR 122), “Mst. Naseem Akhtar and 4 others versus Shalimar General Insurance Company Limited and 2 others (1994 SCMR 22), “Abdul Salam versus Sharif Ahmad and another” (1971 SCMR 596), “Muhammad Sharif versus Jalaluddin” (1971 SCMR 594), “Hafiz Muhammad Ashiq Hussain versus Mst. Abida Begum” (1996 MLD 588), “Land Acquisition Collector (PWD), B&R Central Region, Lahore and others” (1989 MLD 1850), “Yousuf Ali versus Ali Gohar” (2007 CLC 1741), “Executive Vice-President and another versus Brig. (R) Mian Hameed-ud-Din” (2010 CLD 823) and “Habib Bank Ltd and another versus Wasim Enterprises and others" (2007 CLD 473).

4. We have decided the arguments and perused the record.

5. The Appellant has disputed the order dated 29.09.2017 whereby the Banking Court while exercising powers under Section 47 of CPC refused to execute the decree on the grounds that (i) there exist no relationship of customer and financial institution and (ii) the decree was passed without jurisdiction. The relevant portion of impugned order is reproduced hereunder:

“Perusal of the record reveals that admittedly the loan was obtained by the judgment debtor from the Bank and not by the decree holder, thus there does not exist relationship of customer and financial institution between the decree holder and judgment debtor”.

7. It evinces from the record that the Appellant filed suit for permanent and mandatory injunction before the Banking Court which was somehow decreed videorder dated 31.01.2017, execution of which was filed and consigned to record by the Banking Court through the impugned order. It is settled law that suit for permanent and mandatory injunction cannot be filed before the Banking Court rather to institute a suit before the Banking Court, requirement of Section 9(1) of the Ordinance has to be fulfilled. The Section 9 of the Ordinance states as under:

“9. Procedure of Banking Courts. (1) Where a customer or a financial institution commits a default in fulfillment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath, in the case of a financial institution by the Branch Manager or such other officer of the financial institution as may be duly authorized in this behalf by power of attorney or otherwise”.

In the above section three words are of importance namely “Customer” “Finance” and the “Obligation”. All these words have been defined in Section 2 (c), (d) and (e) of the Ordinance FIO, 2001, as

(c) “customer” means a person to whom finance has been extended by a financial institution and includes a person on whose behalf a guarantee or letter of credit has been issued by a financial institution as well as a surety or an indemnifier;

(d) “finance” includes

(i) an accommodation or facility provided on the basis of participation in profit and loss, mark-up or mark-down in price, hire- purchase, equity support, lease, rent-sharing, licensing charge or fee of any kind, purchase and sale of any property including commodities, patents, designs, trade marks and copy-rights, bills of exchange, promissory notes or other instruments with or without buy-back arrangement by a seller, participation term certificate, musharika, morabaha, musawama, istisnah or modaraba certificate, term finance certificate;

(ii) facility of credit or charge cards;

(iii) facility of guarantees, indemnities, letters of credit or any other financial engagement which a financial institution may give, issue or undertake on behalf of a customer, with a corresponding obligation by the customer to the financial institution;

(iv) a loan, advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other financial accommodation provided by a financial institution to a customer;

(v) a benami loan or facility that is, a loan or facility the real beneficiary or recipient whereof is a person other than the person in whose name the loan or facility is advanced or granted;

(vi) any amount due from a customer to a financial institution under a decree passed by a Civil Court or an award given by an arbitrator;

(vii) any amount due from a customer to a financial institution which is the subject matter of any pending suit, appeal or revision before any Court;

(viii) any other facility availed by a customer from a financial institution.

(e) “obligation” includes

(i) any agreement for the repayment or extension of time in repayment of a finance or for its restructuring or renewal or for payment or extension of time in payment of any other amounts relating to a finance or liquidated damages; and

(ii) any and all representations, warranties and covenants made by or on behalf of the customer to a financial institution at any stage, including representations, warranties and covenants with regard to the ownership, mortgage, pledge, hypothecation or assignment of, or other charge on, assets or properties or repayment of a finance or payment of any other amounts relating to a finance or performance of an undertaking or fulfillment of a promise; and

(iii) all duties imposed on the customer under this Ordinance

8. From the above provisions of law, it is clear that under the Ordinance only those issues can be solved which are between the customers and the financial institutions in respect of finance and that too on the ground that any obligation has not been fulfilled. When the definitions, mentioned above, are read with the facts of the present case it is clear that the Appellant was not the customer of the Bank rather it was the Respondent who availed the loan facility in respect of the Vehicle and paid the monthly installments and in this respect NOC was issued in his favour by the Bank on 18.06.2013. Reliance is placed on “Marhaba Pakistan Internatinoal and others versus Habib Bank Limited and another” (2017 CLD 995) where it has been held that “any person other than as defined in S.2(c) of Financial Institutions (Recovery of finances) Ordinance, 2001 did not come within the definition of a ‘customer’”.

1. The counsel for the Appellant has strenuously agitated before us that the Banking Court being the Executing Court cannot go beyond the decree as it has to execute the decree as it is. The answer of this query has already been discussed and elaborated by the Hon’ble Supreme Court of Pakistan in “Habib Bank Limited versus Mst. Parveen Qasim Jan and others” (2014 SCMR 322) in the following manner:

“There is no cavil with the proposition that a Court executing a decree ordinarily is not supposed to travel beyond its terms as held in number of judgments pronounced by superior Courts, few of them have been referred by the learned counsel for the petitioners in his arguments but simultaneously the executing Court while exercising jurisdiction under Section 47, C.P.C. can question the executability of a decree if it is satisfied that the decree is a nullity in the eye of law or it has been passed by a Court having no jurisdiction or the execution of the decree would not infringe the legal rights of the decree-holder if

refusedto be executed or the decree has been passed in violation of any provision of law.”

10. The principles enunciated and the question of law decided by the Hon’ble Supreme Court in Habib Bank case (supra), is binding on us under Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”). We have noted that the suit was filed by the Appellant against the Respondent and the Bank but perusal of the decree reveals that it was decreed ex-parte to the extent of present Respondent however, the contentions of the Bank were not considered at the time of passing of decree rather the same was taken into account during the execution proceedings. The Banking Court in the impugned order noted that the loan was obtained by the Respondent from the Bank and not by the Appellant because there exists no relationship of customer and financial institution between the Appellant as per Section 9 of the Ordinance and the mentioned definitions. Therefore, the Banking Court has rightly passed the impugned order which is in line with the Habib Bank case (supra).

1. Needless to add that judgments referred by the learned counsel for the Appellant cannot be relied upon being distinguishable from the facts and circumstances of the case as each and every case has its own merits.

12. We, therefore, find no illegality in the impugned order which has been passed in consonance with the spirit of law, the Ordinance, hence, does not call for interference by us in the instant appeal.

1. In the circumstances presented hereinabove, this appeal being devoid of any merit, is hereby dismissed.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 393

Present: Shahid Bilal Hassan, J.

ChaudharyASGHAR ALI--Petitioner

versus

MAQBOOL MASEEH and 3 others--Respondents

W.P. No. 2635 and C.M. No. 662 of 2017, decided on 7.3.2017.

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

----S. 12--Constitution of Pakistan, 1973, Art. 199--Civil Procedure Code, (V of 1908), O.XVIII R. 17--Suit for specific performance--Application for framing of additional issue--Accepted--Application to re-cross-examination of plaintiff's witness--Dismissed--Civil revision--Dismissed--Framing of additional issue after recording of evidence--Vested right--Admittedly, Issue No. 3-A was framed after recording of examination and cross-examination on witnesses produced by Respondent No. 1/plaintiff--Mere recording of statement of counsel for Respondent No. 1/plaintiff with regard to relying on earlier recorded evidence does not prevent petitioner/defendant from conducting cross-examination on witnesses in Issue No. 3-A, which was framed later on--Courts below have misconstrued law on subject and have failed to exercise vested jurisdiction in accordance with law while passing impugned orders--Trial Court ought to have allowed application for cross-examination on witnesses of Respondent No. 1/plaintiff only to extent of Issue No. 3-A instead of declining application filed by petitioner because petitioner/defendant cannot be deprived of his vested right in this regard--Petition was allowed. [P. 395] A, B & C

M/s. Zahid Sikandar & Ahmad Qayyum, Advocates for Petitioner.

Mr. Zabi Ullah Nagra, Advocate for Applicant/Respondent No. 1.

Date of hearing: 7.3.2017.

Order

C.M. Wo. 662 of 2017.

This is an application for documenting the main writ petition. Relying on the contents of this application, supported by affidavit and no objection from learned counsel representing the petitioner, this application is allowed subject to all just and legal exceptions.

Main Case

Precisely, the Respondent No. 1 instituted a suit for specific performance against the present petitioner. During pendency of the suit, the petitioner/defendant filed an application for framing an additional issue, which was accepted being conceded by the Respondent No. 1/plaintiff and said issue was framed as Issue No. 3-A by the learned Trial Court vide order dated 14.07.2015. On 26.10.2015, the Respondent No. 1/plaintiff through his counsel stated that the plaintiff would not lead any further evidence in favour of additional issue. The petitioner/defendant filed an application to re-cross examine the plaintiffs witnesses on Issue No. 3-A. The said application was resisted by the Respondent No. 1/plaintiff. The learned Trial Court vide impugned order dated 26.10.2015 dismissed the application filed by the petitioner/defendant; against the said order, the petitioner filed a civil revision which was dismissed vide impugned order dated 24.11.2016. Hence, this writ petition.

1. Learned counsel for the petitioner has argued that the impugned orders are against law and facts of the case; the same have been passed in slipshod, hasty, arbitrary and fanciful manner. Both the learned Courts have passed the impugned orders without applying their judicious mind and the same are based on surmises and conjectures. Adds that even if, the Respondent No. 1/plaintiff opted not to produce any further evidence on additional issue, it does not deprive the petitioner/defendant of his right to cross-examine the witnesses of Respondent No. 1/plaintiff, Order XVIII Rule 17 of C.P.C. is clear in this regard. Learned Courts below have misconstrued the law on the subject, which resulted in miscarriage of justice; therefore, by allowing the writ petition in hand, impugned orders passed by the learned Courts below may be set aside; consequent whereof application filed by the petitioner for cross-examination of witnesses of Respondent No. 1 with regard to Issue No. 3-A may be allowed. Relies on Saleem Jan alias Salman Khan v. Abdul Manan and 2 others (2009 MLD 1127).

2. On the other hand, learned counsel appearing on behalf of Respondent No. 1 by favouring the impugned orders has prayed for dismissal of the writ petition in hand.

3. Heard.

5. Provisions of Order XVIII Rule 17 of C.P.C. are clear on this proposition that the learned Trial Court can summon any witness for examination or cross-examination even if the said witness was already examined. Admittedly, Issue No. 3-A was framed after recording of examination and cross-examination on the witnesses produced by the Respondent No. 1/plaintiff. Mere recording of statement of the learned counsel for the Respondent No. 1/plaintiff with regard to relying on the earlier recorded evidence does not prevent the petitioner/defendant from conducting cross-examination on the witnesses on Issue No. 3-A, which was framed later on. The learned Courts below have misconstrued law on the subject and have failed to exercise vested jurisdiction in accordance with law while passing the impugned orders. As after framing of Issue No. 3-A new horizon had opened for the parties, therefore, the learned trial Court ought to have allowed the application for cross-examination on the witnesses of Respondent No. 1/plaintiff only to the extent of Issue No. 3-A instead of declining the application filed by the petitioner because the petitioner/defendant cannot be deprived of his vested right in this regard. Reliance in this

regard is placed on Saleem Jan alias Salman Khan v. Abdul Manan and 2 others (2009 MLD 1127).

1. For the foregoing reasons, the instant constitutional petition is allowed, impugned orders are set aside, consequent whereof application moved by the petitioner/defendant for cross-examination on the witnesses produced by the Respondent No. 1 /plaintiff only to the extent of Issue No. 3-A will be deemed to be accepted.

(Y.A.) Petition allowed

PLJ 2021 Lahore 396 [Multan Bench Multanl]

Present: Rasaarl Hasan Syed, J.

MUHAMMAD SHAKEEL and others--Petitioners

versus

D.G. PUNJAB EMERGENCY SERVICES RESCUE 1122 and others--Respondents

W.P. No. 11465 of 2020, decided on 10.9.2020.

Constitution of Pakistan, 1973--

----Art. 199--Application for post of LTV drivers--Joining of emergency service academy--Issuance of letter--Names of petitioners were struck of roll of training academy due to poor driving proficiency--Retesting as per requirement of department--Non-inclusion in training batch--Discrimination--Direction to--Send a copy of this petition along with all its annexures to Respondent No. 2/Deputy Director (HR), Punjab Emergency Services (Rescue-1122), Lahore, who is directed to attend to grievance raised by treating it as representation on behalf of petitioners and after considering matter with all sincerity, to dispose of same, expeditiously, in accordance with law on its own merits by taking up case of each petitioner individually and ensuring that no one is unduly discriminated against--Petition was disposed of. [P. 397] A

SardarAshfaq Ahmed Khan Baloch, Advocate for Petitioners.

Mr. Ahmed Nadeem Gehla, Assistant Advocate-General Punjab, on Court call.

Date of hearing: 10.9.2020.

Order

Submits that the petitioners applied for the post of LTV Drivers (BPS-04) after assing NTS test and upon clearing the

departmental Driving Skill Test as well as interview they joined the Emergency Services Academy, Lahore; subsequently on 18.03.2020 a letter was issued whereby their names were struck off the rolls of the training academy purportedly due to good driving proficiency and they were asked to get themselves re-tested from any recognized institute with the assurance that they would be re-inducted in the next training batch; but despite having purportedly got themselves re-tested as required, their fate has been left in the lurch as they were neither included in the training batch to follow or in any batch thereafter nor have they received any intimation as to when they could be re-inducted to take their training to its logical conclusion and join the walk of life as earning and productive members of the society. It is further added that in W.P.Nos.10538/2018 and 6018/2018, the petitioners before the Court, who were on similar footing as the petitioners, were favoured with a conceding statement from the department and were allowed to rejoin training but the petitioners are being unjustifiably discriminated against.

3. Send a copy of this petition along with all its annexures to Respondent No. 2/Deputy Director (HR), Punjab Emergency Services (Rescue-1122), Lahore, who is directed to attend to the grievance raised by treating it as representation on behalf of the petitioners and after considering the matter with all sincerity, to dispose of the same, expeditiously, in accordance with law on its own merits by taking up the case of each petitioner individually and ensuring that no one is unduly discriminated against.

1. With these observations the petition is disposed of.

(Y.A.) Petition disposed of

PLJ 2021 Lahore 397

Present:Shams Mehmood Mirza, J.

LAHORE DEVELOPMENT AUTHORITY through Director General and others--Petitioners

versus

MUHAMMAD IRFAN and others--Respondents

W.P. No. 40228 of 2016, decided on 19.11.2020.

Constitution of Pakistan, 1973--

----Art. 199--Initiation of proceedings under PEEDA Act--Grievance petition before labour appellate tribunal--Allowed--Appeal--Matter was remanded to labour Court--Challenge to--Jurisdiction--Where an employee has been proceeded against under a statue or statutory rules of service and same do not provide any remedy before a specific forum, his remedy will lie before High Court by way of a constitutional petition--Counsel for Respondents No. 1 and 3 in view of law laid down in aforementioned has nothing much to say as said respondents were proceeded against under provisions of PEEDA--Law laid down by Hon’ble Supreme Court is fully applicable to facts of present case--Petition was allowed.

[Pp. 398 & 399] A & B

2020 SCMR 471 ref.

Sahibzada Muzaffar Ali Advocate for Petitioner.

Rana Junaid Hussain Advocate for Respondent No. 3

Date of hearing: 19.11.2020.

Order

This writ petition has been filed to challenge order dated 16.09.2016 passed by the Punjab Labour Appellate Tribunal.

1. It is stated that the petitioner took disciplinary action against Respondents No. 1 to 3 under the provisions of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (PEEDA) and as such the jurisdiction of the labour Court was barred to entertain and adjudicate upon the grievance petition filed by the said respondents.

2. The Hon’ble Supreme Court in C.A. No. 1842 of 2019 titled Gujranwala Electricity Power Company Limited v. Punjab Labour Appellate Tribunal and others has held as under:

In the very first place, the very grievance petition filed by the respondent before Labour Court, was not maintainable for that the action taken against the respondent was under the RSO, 2000, which being a statutory law and thus, Standing Order Ordinance was not applicable to the case, in which the right of filing of grievance petition in the Labour Court has been given to a worker.

Similarly, the Hon’ble Supreme Court in the case of Bashir Ahmad and others v. The Director General, Lahore Development Authority, Lahore and others 2020 SCMR 471 has held that where an employee has been proceeded against under a statue or statutory rules of service and the same do not provide any remedy before a specific

forum, his remedy will lie before the High Court by way of a constitutional petition.

3. Learned counsel for Respondents No. 1 and 3 in view of the law laid down in the aforementioned has nothing much to say as the said respondents were proceeded against under the provisions of PEEDA. The law laid down by the Hon’ble Supreme Court is fully applicable to the facts of the present case.

1. In the circumstances, this writ petition is allowed and order dated 16.09.2016 passed by the Punjab Labour Appellate Tribunal is set aside. Respondents No. 1 to 3 may challenge the order passed against them by the petitioner in appropriate proceedings.

(Y.A.) Petition allowed

PLJ 2021 Lahore 399

Present: Muhammad Sajid Mehmood Sethi, J.

MUHAMMAD SARWAR--Petitioner

versus

FARDOUS BIBI, etc.--Respondents

W.P. No. 6458 of 2015, decided on 25.11.2020.

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

----S. 12(2)--Plea of--None of plea raised in application u/S. 12(2), CPC--So far as petitioner’s argument that award has already been implemented, suffice it to say that said award has never been made-rule of Court, therefore, this plea is not sustainable--There are concurrent findings arrived at by Courts below, which have been rendered after correct appreciation of available record and application of relevant law, thus, no interference by this Court, in exercise of constitutional jurisdiction, is warranted.

[P. 401] A & B

Mian Shahid Mehmood, Advocate for Petitioner.

Mr. Amir Javed Bhatti, Advocate for Respondents No. 1 to 5.

Date of hearing: 25.11.2020.

Order

Through instant petition, the petitioner has assailed vires of order dated 09.06.2010 and 30.10.2014, parsed by learned Civil Judge and learned Additional District Judge Gujranwala respectively, whereby application of petitioner under Section 12(2) CPC was dismissed concurrently.

1. It is contended by learned counsel for petitioner that judgment and decree dated 04.12.1998 regarding property owned and possessed by the petitioner was obtained by Respondents No. 1 to 5 at the back of petitioner. Adds that Respondents No. 1 and 2 are real sisters of petitioner, who were party to the suit but they have no ownership/title in the suit property. Adds that the petitioner’s application under Section 12(2) CPC, has not been decided on merits rather he has been knocked out on technical ground of limitation Further submits that Arbitration Award dated 26.06.1997 was fully acted upon and Respondents No. 1 and 2 sold their shares to Respondent No. 3. In the end, he submits that impugned decisions are unsustainable in the eye of law.

2. Conversely, learned counsel for respondents defends the impugned decisions.

3. Arguments heard. Record perused.

4. Perusal of record shows that none of pleas raised through instant petition has been taken by petitioner in application under Section 12(2) CPC and even delay has not been explained therein. In the given circumstances, learned revisional Court rightly held that the application to be barred by time almost 08 years by making following observations:

“Onus to prove this issue was placed upon the petitioner. Disputed judgment and decree was passed on 04.12.1998 whereas application u/S. 12(2) CPC was filed in 2006 with considerable delay of almost eight years. Petitioner has not given explicit reason for delay of such a long period. Parties are related to each other and it does not appeal to reason that petitioner remained unaware of the judgment and decree for a period of about eight years. Contentions of the petitioner are afterthought and unrealistic. Findings oft the learned trial Court on Issue No. 3 are strictly in accordance with law and there is no misreading or non-reading of the evidence. The findings of the learned trial Court on Issue No. 3 are justified. Both the parties are close real relatives. The sale of a property in the area and within family is a talk of the town and it cannot be remained in vacuum when the petitioner is neighbourer to the suit property. The petitioner on a one fine morning awoke from a deep slumber and walked into the Court after more than 08 years without disclosing source of information. The law aids the vigilant and not the dormant. I

am in agreement with the same which does not require any interference by this Court thus this issue is decided against petitioner.”

6. So far as petitioner’s argument that the award has already been implemented, suffice it to say that said award has never been made rule of Court, therefore, this plea is not sustainable.

7. Even otherwise, there are concurrent findings arrived at by the learned Courts below, which have been rendered after correct appreciation of available record and application of relevant law, thus, no interference by this Court, in the exercise of constitutional jurisdiction, is warranted.

1. In view of the above, instant petition, being devoid of any substance, is dismissed with no order as to costs.

(R.A.S.) Petition dismissed

PLJ 2021 Lahore 401

Present: Mrs. Ayesha A. Malik, J.

SUPERIOR COLLEGE FOR GIRLS--Petitioner

versus

GOVERNMENT OF PUNJAB through Chief Secretary etc.--Respondents

W.P. No. 54008 of 2020, heard on 17.2.2021.

Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984--

----Ss. 3(3), 5 & 6--Constitution of Pakistan, 1973, Art. 199--Application for extension in registration and addition of subjects--Inspection was carried out--Recommendation for registration--Issuance of hope certificate--Non-issuance of registration certificate--Issuance of NOC for registration of private colleges--Validity for registration certificate--Requirement for registration-- Challenge to--Petitioner along with other private institutions are required to approach Respondent No. 3 on a yearly basis for registration--Respondent No. 3 issues a registration certificate which is valid for one year--There is nothing in Rules nor any regulations or any standing operating procedures (“SOPs”) for this yearly registration process--It seems a bit odd that Respondent No. 3 would register Petitioner’s institution to carry out a four year degree program yet require annual registration--Also there are no regulations for inspections, no SOPs for compliance and nothing to show how inspection is carried out--Respondent No. 3 was unable to explain manner in which private institutions are inspected and required to rectify objections--Rules do not provide for manner in which objections raised can be cured or removed--There should be a specified timeframe within which registration process is completed and there appears to be no justification requiring an annual registration--When confronted with above, Deputy Director (Colleges) was unable to give any reasonable explanation nor could he justify processes undertaken--It appears that they are done without any comprehensive procedure set out-- Respondent No. 3 is directed to make regulations and SOPs with reference to registration process--They are also required to set out a timeline for purposes of registration--There appears to be no justification for annual registration which matter should be considered and a reasonable timeframe should be given within which existing registration expires and fresh registration has to be undertaken-- Director General when questioned stated that college could be registered by May 2021--Even this statement is totally negligent as there is no reason to delay matter until May 2021--If at all Respondent No. 3 considers it necessary to carry out another inspection for any private institution it should not take so many months and particularly in this case where matter has been delayed for more than one and half year totally due to Respondent No. 3--Petition accepted. [Pp. 406 & 407] A, B, C, D, E & F

Mr. Shan Saeed Ghumman, Mr. Adeel Hassan and Mr. Azizullah Khan, Advocates for Petitioner.

Mr. Akhtar Javed, Additional Advocate General, Punjab along with Dr. Ashiq Hussain, Director General Public Instructions (Colleges), Punjab, Sakhawat Ali Dogar, Deputy Director (Colleges) and Qaiser Raza, Deputy Director in the office of Respondent No. 3.

Date of hearing: 17.2.2021

Judgment

Through this Petition, the Petitioner challenges the actions of Respondent No. 3 as well as Respondent No. 2 with respect to the delay caused in the issuance of its registration under the Punjab Private Educational Institutions (Promotion and Regulation) Ordinance, 1984 (“Ordinance”).

1. The case of the Petitioner is that it applied under the Ordinance for extension in registration and addition of subjects for the session 2018-19 and 2019-20 on 18.12.2018 with respect to its campus at East Bank Sadiq Canal near Darri Singh Pull, Rahim Yar Khan. In response thereto, an inspection was carried out by Respondent No. 3 on 9.7.2019 whereby the Petitioner’s College was recommended for registration. Subsequent thereof Dr. Ashiq Hussain, Director General in the office of Respondent No. 3 issued Hope Certificate on 23.7.2019 stating therein that the request for registration of the Superior College, Canal View near Darri Singh Pull, Rahim Yar Khan has been received for the session 2019-23 and is under process in its office. On the basis of the Hope Certificate, the Petitioner applied with the University of Sargodha as well as University of Education, Lahore for affiliation of its degree programs. These were granted on 20.9.2019 and 9.6.2019 whereafter the Petitioner reverted back to Respondent No. 3 for issuance of its registration certificate. However Respondent No. 3 did not issue the registration certificate, instead Respondent No. 2 issued letter dated 16.1.2020 claiming therein that the Petitioner’s application for registration was time barred, hence it could not be granted any affiliation or registration. Respondent No. 2 also directed Respondent No. 3 to stop entertaining cases for registration of private colleges. Hence the instant Petition.

2. Learned counsel for the Petitioner argued that Respondent No. 2, Higher Education Department has no jurisdiction with respect to registration of private educational institutions under the Ordinance. In this regard, the issue has already been settled by this Court vide judgment dated 14.2.2020 passed in WP No. 49585/2019 titled Superior College of Commerce v. Govt. of the Punjab through Chief Secretary and others and judgment dated 14.2.2020 passed in WP No. 58931/2019 titled Punjab College v. Govt. of the Punjab through Chief Secretary and others. Learned counsel submits that this Court has already declared interference by the Higher Education Department with reference to the registration of educational institutions as totally illegal, yet Respondent No. 2 interfered and has restricted Respondent No. 3 from processing the application of the Petitioner. Learned counsel stated that on the basis of the application for registration and issuance of Hope Certificate, the Petitioner has obtained affiliation, admitted students, commenced its programs and now the Respondents are failing to complete the registration process by way of issuance of the registration certificate. Learned counsel submits that once an inspection is carried out and Respondent No. 3 is satisfied with the facilities, there is no basis for denying registration to the Petitioner.

3. Report and para wise comments have been filed by Respondents No. 2 and 3. Learned Law Officer argued that the Petitioner has not applied for registration as the Petitioner represents Superior College for Girls whereas the application tendered before Respondent No. 3 was for Superior College. Hence he stated that the College for Girls has not applied before Respondent No. 3 for extension of its registration. He further argued that Secretary, Higher Education Department being the Administrative Secretary of the Department issued notification dated 13.7.2018 in which a time schedule was provided for grant of NOC for public and private sector colleges in Punjab. On the basis thereof the Petitioner filed the application late, hence their application has been refused. Learned Law Officer further argued that the judgments relied upon have been appealed against, however he stated that the ICAs are still pending. So far as Respondent No. 3 is concerned, today Sakhawat Ali Dogar, Deputy Director (Colleges) has appeared in Court with the original record as per orders of this Court dated 16.2.2021.

4. Heard and record perused. The basic contention of the Respondents is that the College of the Petitioner cannot be registered as it is a college for girls which did not apply for registration. However admittedly there is an application filed by the Superior College, Rahim Yar Khan which is pending and pursuant to which Hope Certificate was issued. In this regard, I have carefully gone through the original record and note that the address of the college is the same, the inspection report carried out by Respondent No. 3 is for the same campus and the Hope Certificate is also for the same Campus. Six members of the divisional inspection team visited the college premises on 25.5.2019 and found that the college satisfied all conditions for registration, hence recommended it for registration in the additional subjects of BS (Computer Science, Information Technology, Chemistry, Mathematics and English) for the session 2019-2023. Consequent thereof a Hope Certificate was issued on 23.7.2019 wherein the Director General of Respondent No. 3 acknowledged that the registration was pending and that the Petitioner can carry on with the affiliation process as contemplated under Section 3(3) of the Ordinance which allows the institution to continue to function without registration during the registration process. The Petitioner applied for affiliation with the University of Sargodha and the University of Education, Lahore which was duly granted and the Petitioner has been awaiting registration since 20.9.2019. On 16.1.2020 Respondent No. 2 Higher Education Department issued a letter stating that 60 private colleges applied for BS four year degree program after the due date as per the Higher Education Department’s Notification dated 13.7.2018 which cannot be processed and only cases fulfilling Higher Education Department’s criteria can be submitted for necessary action. A list has been attached with this notification which includes the Petitioner college at Serial No. 32. The contention of the Higher Education Department is that since Secretary Higher Education Department is the Administrative Secretary of the department, hence he can interfere in the registration process. The record also shows that the Directorate of Public Instruction Respondent No. 3 issued a letter on 23.7.2019 seeking issuance of NOC for registration of Private Colleges in BS four year degree program from Respondent No. 2. The letter is with reference to the Petitioner’s Campus. However, there is no explanation for its issuance.

5. The Ordinance provides under Section 3 that all institutions are to be registered and under Section 5 the government shall, by notification, constitute one or more District Committees in each district consisting of at least five members to perform its functions related to registration under the Ordinance. The application for registration is to be moved before the registering authority which is an officer or committee as notified under Section 6 of the Ordinance. This means that the registering authority is Respondent No. 3 which has been notified by the Government to carry out the registration process. As per the preamble of the Ordinance registrations is part of the process for regulating the institutions under the Ordinance. In the entire scheme of the law Respondent No. 2 has no role to play. Learned Law Officer does not deny this, however the only explanation for the interference by Respondent No. 2 in the registration process is that the Secretary is the head of the department. This argument is misconceived as Respondent No. 2 has not been able to show how its Secretary is the administrative head of Respondent No. 3. It is also noted that in terms of Section 3, once an application for registration of an institution is submitted, the officer receiving the application shall forward the same to the district committee to make an inquiry and submit its report to the registering authority within sixty days. The registering authority after considering the report of the district committee can carry out further inquiry, if it deems necessary and can impose conditions for grant of registration and issue a registration certificate. Section 6(5) of the Ordinance states that the Government, by notification, can constitute one or more Registering Authorities in a district and if more than one Registering Authority is constituted in a district, the Government shall specify the jurisdiction of each Registering Authority. Hence Respondent No. 2 has no jurisdiction with respect to the registration of an institution under the Ordinance and in this regard the Petitioner’s contention that the matter in issue has already been adjudicated through WP No. 49585/2019 (supra) and WP No. 58931/2019 (supra) is correct. So far as letter dated 16.1.2020 is concerned, it required an NOC issued by Respondent No. 2 for private colleges for the purposes of starting a four year degree programs. It also refers to Respondent No. 2’s guidelines of 13.7.2018 on this subject. The guidelines of 13.7.2018 are for starting a degree program and has no relevance to the registration process.

6. As per the Rules of Business, Respondent No. 2 Higher Education Department is a government department which is primarily tasked with policy formations and sectoral planning. It has an administrative role under the laws mentioned at Serial No. 37 includes the Ordinance. This means that the Higher Education Department can help devise policy on the matter but since it has no role under the Ordinance and the Rules, it cannot interfere in the working of Respondent No. 3. Respondent No. 3 is to register private educational institutions to ensure compliance with the Ordinance and the Punjab Private Educational Institutions (Promotion and Regulation) Rules, 1984 (“Rules”), specifically Rules 11 and 12 of the Rules. In terms of these Rules, the district committee is to ensure that the private institution has the prescribed textbooks; is following the prescribed syllabus; has the relevant employees for teaching; that it is suitably located; that the premises is equipped with furniture, equipment and the staff is sufficient as per the enrolment of students and that a foreign national is not employee in the institution without proper NOC. In terms of Rule 12 of the Rules, conditions for registration are stipulated which essentially requires the record to be maintained; fees to be charged within reasonable limits and that the institution will furnish all relevant information as may be required by the registering authority. There is nothing in the Rules or Ordinance which requires Respondent No. 3 to concur with Respondent No. 2 on this issue. Registration ensures that the requirements of the Rules and the Ordinance are fulfilled for regulatory compliance. Respondent No. 2 as the Higher Education Department is not involved in this process nor does it fall within their mandate. At best Respondent No. 2 should ensure that the functions under the Ordinance are complied with and that proper processes are in place.

8. It has also come to light during the course of arguments that the Petitioner along with other private institutions are required to approach Respondent No. 3 on a yearly basis for registration. Respondent No. 3 issues a registration certificate which is valid for one year. There is nothing in the Rules nor any regulations or any standing operating procedures (“SOPs”) for this yearly registration process. It seems a bit odd that Respondent No. 3 would register the Petitioner’s institution to carry out a four year degree program yet require annual registration. Essentially the registration is of the institution for the purposes of compliance with the Ordinance. Once an institution is registered, Respondent No. 3 can provide a time period for extension in the registration, however there should be rules/ regulations/SOPs for this purpose. Also there are no regulations for the inspections, no SOPs for compliance and nothing to show how inspection is carried out. When confronted with the Rules, Respondent No. 3 was unable to explain the manner in which private institutions are inspected and required to rectify the objections. The Rules do not provide for the manner in which objections raised can be cured or removed. As the objective of the law is to register the private institution, Respondent No. 3 is obligated to set out a process for registration, provide the required rules and regulations along with SOPs and specify the requirements and time line on the basis of which registration will be carried out. There should be a specified timeframe within which the registration process is completed and there appears to be no justification requiring an annual registration. When confronted with the above, Sakhawat Ali Dogar, Deputy Director (Colleges) was unable to give any reasonable explanation nor could he justify the processes undertaken. It appears that they are done without any comprehensive procedure set out. Learned Law Officer has relied upon a check list which is specifically for a Graduate four year program and not for any other programs.

9. Therefore in this regard, Respondent No. 3 is directed to make regulations and SOPs with reference to the registration process. They are also required to set out a timeline for the purposes of registration. As stated above, there appears to be no justification for annual registration which matter should be considered and a reasonable timeframe should be given within which the existing registration expires and fresh registration has to be undertaken. It is also important to note here that the understanding of the officials of Respondent No. 3 with respect to the objective of registering private institutions is negligible. Although the senior officers were present before the Court, no one could explain what procedure or process was undertaken nor could anyone assist the Court on the timeline that followed and the reasons for the delay. Director General when questioned stated that the college could be registered by May 2021. Even this statement is totally negligent as there is no reason to delay the matter until May 2021. If at all Respondent No. 3 considers it necessary to carry out another inspection for any private institution it should not take so many months and particularly in this case where the matter has been delayed for more than one and half year totally due to Respondent No. 3.

1. In view of the aforesaid, the instant Petition is accepted and Respondent No. 3 is directed to immediately register the college of the Petitioner.

(Y.A.) Petition accepted

PLJ 2021 Lahore 408 (DB)

Present: Sardar Ahmed Naeem and Farooq Haider, JJ.

MUHAMMAD AKRAM ASHRAF--Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU, through Chairman Islamabad and 3 others--Respondents

W.P. No. 49957 of 2020, decided on 28.10.2020.

National Accountability Ordinance, 1999--

----S. 9(a)(vi)--Constitution of Pakistan, 1973, Art. 199--Post-arrest bail--Grant of--Charge of misuse of authority--Application for grant of liquor license--Invitation of proclamation objections--Procedural requirements--Report of excise and taxation officer--Recommendation for grant of license--Grant of license--Material inadequacies were not addressed--Withdrawal of licence--Procedural irregularity--Exercise of jurisdiction--Writ petition--Allowed--Culpability of petitioner--Challenge to-- No evidence whatsoever is available on file to suggest any misuse of authority by petitioner as different memos available on record indicate that codal formalities were fulfilled prior to grant of licence to hotel--Prosecutor for NAB could not point out any material from record showing any mens-rea or if petitioner misused his authority for some ill-gotten gain in context of misuse of authority--It is also settled by now that mere procedural irregularity in exercise of jurisdiction may not amount to misuse of authority--Law merely attracted where exercise of authority for a purpose not intended by law, where a person in authority acts in violation of law with conscious knowledge that his act was without authority of law--No document, whatsoever was available on record or referred to by Special prosecutor for NAB suggesting guilty intent of petitioner, thus, culpability of petitioner needs serious consideration, thus, petitioner is entitled to relief prayed for--Petition allowed.

[Pp. 412 & 413] A, B, C & D

M/s. Ahsan Bhoon and Ch. Zaheer Advocates for Petitioner

Syed Faisal Raza Bukhari, Special Prosecutor for NAB.

RehanAkram Afzaal Investigating Officer NAB, in person.

Date of hearing: 28.10.2020.

Order

Through this petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioner seeks post arrest bail in Inquiry No. 1989-2019/DO(L)-NAB/HQ Headquarter. The petitioner was served upon with the following grounds of arrest:

(i) The accused person, by misuse of authority, granted illegally L-2 Liquor License to Unicorn Prestige Hotel for which the hotel was not otherwise eligible at that time;

(ii) Whereas Unicorn Hotel did not have 4/5 star rating, which is necessary/primary condition for obtaining the L-2 Liquor License, the L-2 License was granted to M/S Unicorn Prestige Ltd without first obtaining 4/5 star rating certificate from the Department of Tourist Services, Punjab;

(iii) The accused did not follow other necessary procedures before of grant of license. However, the accused, being Director General, granted L-2 Liquor License to Unicorn Prestige Ltd, Lahore without fulfilling all necessary legal/codal formalities, as required under the law/policy;

(iv) The accused also managed to obtain NOCs from different departments through the ETO who issued letters for having NOCs regarding giving L-2 Liquor License to M/S Unicorn prestige Ltd to facilitate the company;

(v) The accused maneuvered and engineered the whole process to grant L-2 Liquor License to M/S Unicorn prestige Ltd without its eligibility at that time;

1. Learned counsel for the petitioner contended that no direct or circumstantial evidence was brought on record to suggest that the petitioner exercised his powers for some consideration or undue benefit for himself or for any other person and as such, case would not fulfill test of Section 9(a)(vi) of National Accountability Ordinance, 1999 to justify criminal prosecution; that in a case set out under Section 9(a)(vi) of National Accountability Ordinance, 1999, the prosecution had to make out a reasonable case; that mere procedural irregularity in the exercise of jurisdiction may not amount to misuse of authority so as to constitute an offence under Section 9(a)(vi) mentioned above. Adds that charge of misuse of authority can only be attracted where there is wrong and improper exercise of authority for a purpose not intended by the law or where a person in authority acted in disregard of the law with the conscious knowledge that his act was without the authority of law and where act was done with intent to obtain or give some advantage inconsistent with the law; that element of mens-rea and intention to commit an offence under Section 9(a)(vi) of National Accountability Ordinance, 1999 were not traceable in this case; that the petitioner performed his duty under the law and even the Chief Secretary recorded a note in summary prepared for the Chief Minister that further necessary action may be taken. It was submitted that licence L-2 granted by the petitioner was withdrawn and was ultimately declared as valid by this Court vide judgment dated 10.10.2019 passed in Writ Petition No. 1949-2019; that no recovery was effected from the petitioner, who is behind the bars since arrest and his long incarceration would not serve any purpose to the prosecution; that no body can be detained in jail for indefinite period by way of advance punishment; that there was no likelihood of tampering with evidence by the petitioner and absconsion as he was a government servant. Concluding his arguments, learned counsel for the petitioner submitted that culpability of the petitioner, in the circumstances, needs serious consideration and he was entitled to bail.

2. Learned Special Prosecutor for NAB opposed this petition with vehemence and submitted that the petitioner granted L-2 Liquor licence in the capacity of DG Excise violating the law, mandatory procedure and policy and the grant of such licence in form L-2 to M/S Unicorn Prestige Ltd will result in boosting of its income; that grant of L-2 licence was restricted only to 4/5 star hotels and that the said hotel was not qualified for the said licence; that there was sufficient material available on the record suggesting misuse of authority which attracts Section 9(a)(vi) of National Accountability Ordinance, 1999.

3. Arguments heard. Record perused.

4. A review of the record demonstrates that the application for the approval/grant of liquor licence was filed by M/S Unicorn Prestige Ltd. Hotel near Allama Iqbal International Airport, Lahore on 03.7.2018. It was mentioned in the application that the requirement of Five Star Hotel have to cater the foreign/domestic tourists, foreign and domestic investors/businessmen, foreign and national Displomatic delegations etc. and thus, licences were granted to similar hotels in Pakistan. On 11.7.2020, Excise and Taxation Officer addressed the Director General Exercise and Taxation (Region-D), Lahore regarding the said application and on 13.7.2018, Director General Excise and Taxation (Region-D), Lahore directed to Excise and Taxation Officer Excise Branch, Lahore to look into the request of the applicant and submit comments on the issue involved. Consequently, on 23.7.2018, the Excise and Taxation Officer (Excise), Lahore recorded his observations with the proposal that the same may be communicated to the applicant i.e. the hotel. Thereafter, no objection certificate for liquor licence regarding the above said subjects were issued by District Health Officer (preventive Services) vide memo. dated 03.1.2019. The Deputy Commissioner Lahore vide memo. dated 03.1.2019, Civil Defence Officer, Lahore dated 02.1.2019, Deputy Inspector General of Police (Operations), Lahore dated 04.1.2019, the Additional Cantonment Executive Officer Lahore Cantt dated 31.12.2018 and Senior Joint Director Commercial/ Chief Operating Officer Airport Manager Civil Aviation Authority dated 01.1.2019. Through a proclamation objections were also invited at some stage. Ultimately, Excise and Taxation Officer (Exercise-II), Lahore recommended for the grant of licence in form L-2 in favour of hotel vide memo. dated 18.12.2018. The record further divulged that Director General Excise and Taxation, (Region-D), Lahore vide memo. dated 18.12.2018 recommended the petitioner/Director General Excise and Taxation Punjab for the grant of licence and endorsed detailed and self explanatory report of the Excise and Taxation Officer subject to the completion of the hotel premises and fulfillment of all codal formalities under the law/rules. Then the request of hotel was looked into by the Excise and Taxation Committee which examined the case in detail in the light of relevant law/rules and after deliberation, unanimously agreed the request put forth by the applicant/hotel and recommended for grant of L-2 licence in its favour vide memo. 19.12.2018 under the convener-ship of Additional Director General, Excise and Taxation, Punjab subject to fulfillment of formalities. The memo. dated 02.1.2019 of Excise and Taxation Officer (Excise-II), Lahore revealed that the legal/codal formalities required for grant of licence in form L-2 under the law were fulfilled, thus, the grant of said licence was recommended. On 03.1.2019, Director Excise and Taxation (Region-D), Lahore forwarded the said case for the grant of licence in form L-2 in favour of M/S Unicorn Prestige Ltd. The available record further suggested that a summary was prepared by the ET & NC Department for Chief Minister Punjab wherein it was mentioned that under Rule 26 of Punjab Prohibition (Enforcement of Hadd) Rules, 1979, Excise Commissioner/Director General Excise and Taxation Punjab was empowered for grant of such licence but the government of the Punjab approved a policy on 17.2.2009 by virtue of which such licence could be granted but only to 4/5 Star Hotels which meet other requisite conditions laid down under the law/rules. However, said policy was never notified as conceded by the learned Special Prosecutor as well as mentioned in the judgment dated 10.10.2019 (mentioned above). In para-6 of the said summary, it was mentioned that in consideration of the recommendations of the Director Excise and Taxation (Region-D), Lahore, the Director General Excise &, Taxation opined that prima facie, the applicant had a good case for grant of licence in form L-2 subject to fulfillment of conditions laid down under the law/rules. The authority after perusing the summary observed that the instant matter be dealt with at an appropriate forum as per law/policy in vogue and further necessary action may also be taken accordingly as per law, depicting by note of the Chief Secretary Punjab. Finally, the required Licence in form L-2 was granted in favour of the applicant on 09.1.2019 under registered District No. 262/2018-2019. The order dated 28.6.2019 revealed that the Secretary Excise and Taxation and Narcotic Control Department, after perusing the reply of the Director General Excise and Taxation observed that the material inadequacies earlier communicated and conveyed to the Director General Excise and Taxation had not been addressed, thus, the licence granted on 19.1.2020 was ordered to be withdrawn forthwith in terms of Section 41(1)(b) of the Punjab Excise Act, 1914 with the direction to the concerned official and the applicant to fulfill all the procedural requirement. The applicant i.e. M/S Unicorn Prestige Ltd assailed the said order by way of Writ Petition No. A 41949-2019 and this Court vide judgment dated 10.10.2019 set aside the order dated 28.6.2019 with the following observations:

“In view of the above, this petition is allowed and the impugned order is set aside. Consequently, the L-II licence granted to Unicorn will be restored and deemed to be valid for the period for which it was granted”

1. The Court was apprised that order dated 10.10.2019 passed in Writ Petition No. 41949-2019 is neither suspended nor set aside by any competent forum.

7. After hearing the learned counsel for the parties and keeping in view the above discussion, the use of authority by the petitioner as Director General Excise and Taxation is not disputed and the moot question is if use of such authority by the petitioner amount to misuse of authority is not within the purview of Section 9(a)(vi) of National Accountability Ordinance, 1999. Another issue germane to the above mentioned main issue as to whether any misuse of authority by the petitioner in the matter could be said to have been committed with criminal intent so as to make his action culpable or note. No evidence whatsoever is available on the file to suggest any misuse of authority by the petitioner as different memos available on record indicate that codal formalities were fulfilled prior to the grant of licence to hotel on 09.1.2019.

8. Learned Prosecutor for NAB could not point out any material from the record showing any mens-rea or if the petitioner

misused his authority for some ill-gotten gain in the context of misuse of authority. It is also settled by now that mere procedural irregularity in the exercise of jurisdiction may not amount to misuse of authority so as to constitute an offence under Section 9(a)(vi) of the National Accountability Ordinance, 1999 and that a charge of misuse of authority under that law merely attracted where exercise of authority for a purpose not intended by the law, where a person in authority acts in violation of law with the conscious knowledge that his act was without the authority of law.

9. Reverting to the merits of the case, we find some very clear and un-mistakenable clues to a resolution of both, the above mentioned issues lie in a few pages including the recommendations of the ETO concerned, endorsement by the Director Excise and Taxation (Region-D), Lahore, summary prepared for Chief Minister Punjab and grant of licence in form L-2 in favour of M/s Unicorn Prestige Ltd. dated 09.1.2019, though it was withdrawn vide order dated 28.6.2019 but was set aside by the Court vide order dated 10.10.2019 passed in Writ Petition No. 41949-2019. At the cost of repetition, we may mention that no document, whatsoever was available on the record or referred to by the Special prosecutor for NAB suggesting guilty intent of the petitioner, thus, the culpability of the petitioner needs serious consideration, thus, the petitioner is entitled to the relief prayed for.

1. In view of the above, this petition is allowed and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.5,00,000/- with two sureties in the like amount to the satisfaction of the learned trial Court/Duty Judge.

(Y.A.) Petition allowed

PLJ 2021 Lahore 413

Present:Ch. Muhammad Masood Jahangir, J.

ZAFAR ABBAS and 4 others--Petitioners

versus

MEMBER BOARD OF REVENUE PUNJAB and others--Respondents

W.P. No. 57337 of 2020, decided on 9.11.2020.

Constitution of Pakistan, 1973--

----Art. 199--Land Revenue Act, (XVII of 1967), S. 135--Application for separation of shares--Allowed--Appeal allowed--Matter was remanded--Appeal was dismissed after post remand proceedings--Revision petition--Dismissed--Filing of ROR--Dismissed--Exercising of jurisdiction--Concurrent orders--Challenge to--Revenue hierarchy while passing impugned concurrent orders focused compactness of wandas and potential/worth/location of block awarded to sharers--This Court while exercising jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 cannot go deep into factual controversy requiring evidence, whereas on its face value neither impugned orders are coram non judice nor ultra vires rather were passed while keeping in mind afore-noted parameters in dividing property to right holders as per their shares--Thus no case of interference with impugned orders is made out--Petition dismissed. [Pp. 414 & 415] A

Ch. Iqbal Ahmad Khan, Advocate for Petitioners.

Mr. Arshad Jahangir Jhoja, Addl. Advocate General for Respondents on Court’s call.

Date of hearing: 9.11.2020.

Order

The petition in hand calls in question vires of the concurrent orders passed by the revenue hierarchy right from the Court of first instance up to the apex forum, whereby application made by Respondent No. 2 under Section 135 of the Land Revenue Act, 1967 for the partition of joint holding was accorded. The record suggests which otherwise is also not denied by the learned counsel for the petitioners that long ago Respondent No. 2 had tabled afore-noted application for separation of his share out of the area falling in joint khewat and allowed on 05.07.2014, but without extending any right of audience to the petitioners, therefore, the matter remanded by the District Collector to the AC-I. The latter again accorded it in presence of present petitioners vide order dated 18.06.2015, which sustained through dismissal of appeal, revision petition as well as ROR by the District Collector, Additional Commissioner (Revenue), and learned Member, Board of Revenue on 17.02.2020, 18.03.2020 & 22.10.2020 respectively.

2. The learned counsel for the petitioners despite taking maximum time failed to convince that either Respondent No. 2 was not sharer or he was awarded more land than his entitlement. The revenue hierarchy while passing the impugned concurrent orders focused the compactness of wandas and the potential/worth/location of the block awarded to the sharers. This Court while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot go deep into factual controversy requiring the

evidence, whereas on its face value neither impugned orders are coram non judice nor ultra vires rather were passed while keeping in mind the afore-noted parameters in dividing the property to the right holders as per their shares. Thus no case of interference with the impugned orders is made out, therefore, this petition being meritless is dismissed in limine.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 415 [Rawalpindi Bench Rawalpindi]

Present: Mirza Viqas Rauf, J.

MUHAMMAD HALEEM--Petitioner

versus

Mst. SAFA SHABBIR and 2 others--Respondents

W.P. No. 203 of 2019, decided on 17.1.2019.

Constitution of Pakistan, 1973--

----Art. 199--Suit for recovery of maintenance allowance, dower and dowry articles--Partly decreed--Appeals--Appeal filed by petitioner was dismissed and appeal filed by respondent was allowed partly--Modification in judgment of lower Court--Judge Family Court, while decreeing claim of dowry articles, did not take into consideration custom of our society by way of which parents of every bride give items of daily use to their daughter as dowry articles--Judge Family Court has not assigned any cogent reasons while discarding list of dowry articles tendered in evidence by “respondent”--Such conclusion was outcome of presumption and supposition--Additional District Judge, while exercising his appellate jurisdiction, took into account said aspect of custom of our society and principle of law and held “respondent” entitled to recover dowry articles mentioned in list Exh.P-2 or in alternative prices--Alternate value thereof as determined by lower Appellate Court is quite justified keeping in view period of subsistence of marriage, which lasted for more than 2 years--Appellate Court has rightly appraised evidence and conclusion derived therefrom is unexceptionable, which calls for no interference in constitutional jurisdiction--Petition dismissed. [Pp. 418 & 419] A, B, C & D

2017 SCMR 393 and 2008 SCMR 1583 ref.

Ms. Asma Mushtaq, Advocate for Petitioner.

Date of hearing: 17.1.2019.

Order

This constitutional petition under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973 calls in question the judgment and decree dated 7th December, 2018, whereby the learned Additional District Judge, Rawalpindi, while dismissing the appeal filed by the petitioner and partly allowing the appeal preferred by Respondent No. 1 (hereinafter referred as “respondent”), modified the judgment and decree dated 24th May, 2018 passed by the learned Judge Family Court, Rawalpindi.

1. Brief facts necessitating the filing of instant petition are that the “respondent” instituted a suit for recovery of maintenance, dower and dowry articles averring therein that she was married to the petitioner on 24th January, 2014 against a dower of 4 tolas gold ornaments, which was though paid, however, the same was snatched by the petitioner while ousting the “respondent” from his house. It is averred by the “respondent” that she was given dowry articles and gold ornaments by her parents at the time of marriage. As per averments contained in the plaint, the petitioner went abroad in connection with his job whereafter on 21st June, 2014, his family members ousted the “respondent” from his house after snatching dowry articles and gold ornaments. The petitioner resisted the suit by filing written statement wherein he controverted the assertions contained in the plaint. From the divergent pleadings of the parties, the learned Judge Family Court framed multiple issues and recorded evidence of both the sides. After culmination of trial, suit of the “respondent” was partly decreed by way of judgment dated 24th May, 2018. Both the sides, feeling dissatisfied from the said judgment and decree, preferred their respective appeals under Section 14 of The Family Courts Act, 1964. The appeal filed by the petitioner was, however, dismissed whereas appeal preferred by the “respondent” was partly accepted by the learned Additional District Judge by way of judgment and decree dated 7th December, 2018.

2. Learned counsel for the petitioner, at the very outset, submitted that she would confine her arguments to the extent of modification in findings qua dowry articles. Contended that initially the learned Judge Family Court, while partly allowing the claim of “respondent”, has though rightly appraised the evidence available on the record, but the learned Additional District Judge, without assigning any cogent reasoning has modified the said findings of the learned trial Court. Maintains that judgment of the learned Additional District Judge is the result of gross misreading and non-reading of evidence and the same is not tenable under the law.

3. Heard. Record perused.

4. The question in the matter in hand is with regard to dowry articles. There is complete divergence of stances of both the sides in the pleadings qua claim of dowry articles. In order to capture the controversy, the learned Trial Court framed Issue No. 3 in this regard. As per claim of the “respondent”, all the dowry articles valuing Rs. 11, 23, 307/-, which were given to her at the time of marriage by her parents, are in possession of the petitioner whereas the petitioner asserted that the “respondent” was given a few dowry articles by her parents at the time of marriage. In order to prove her claim, the “respondent” herself appeared a PW-1 and tendered her affidavit as Exh.P1. Muhammad Shabbir appeared as PW-2 and supported the stance of “respondent”. The “respondent” produced documentary evidence in shape of list of dowry articles as Exh.P2, notice of divorce as Exh.P4, snaps as Exh.P5 and Exh.P6 and notice of arbitration council as Mark-A.

5. On the contrary, the petitioner, in order to prove his assertion, produced his attorney namely Saleem Shahzad as DW-1, who tendered deed of attorney as Exh.D1 and affidavit as Exh.D2. Muhammad Iqbal appeared as DW-2, whose affidavit was placed on record as Exh.D4. In documentary evidence, list of dowry articles was placed on record as Exh.D3.

6. The learned Trial Court, after appraising the evidence produced by both the sides, partly decreed the claim of the “respondent” in the following manner:

“Suit of the plaintiff for recovery of dowry articles is decreed as per list Exh.D.3.”

The learned Appellate Court, however, while partly accepting the appeal filed by the “respondent” vide judgment and decree dated 7th December, 2018, modified the findings of the learned Trial Court to the following effect:

“9. Up-shot of the above discussion is that appeal filed by the appellant having no force is dismissed whereas appeal filed by the respondent is partially accepted and respondent is entitled to get dowry articles as per list Ex.P2 except gold ornaments or its alternative price Rs. 750,000/- and to the extent of remaining claim appeal is dismissed.”

1. While making an analysis of the findings of the Courts below qua dowry articles, it is observed that though initially the learned Judge Family Court decreed the claim of “respondent” for recovery of dowry articles, while believing the list tendered by the petitioner as Exh.D3, but these findings were modified by the learned Additional District Judge in appeal as mentioned above. After having a comparative analysis of both the judgments on this specific issue, it is noticed that the learned Judge Family Court, while decreeing the claim of the dowry articles, did not take into consideration the custom of our society by way of which parents of every bride give items of daily use to their daughter as dowry articles. It is apparent from the record that items, which have been decreed in favour of the “respondent” by the learned Additional District Judge, are of daily use, which a bride always brings with her at the time of marriage. The learned Judge Family Court has not assigned any cogent reasons while discarding the list of dowry articles tendered in evidence by “respondent”. Such conclusion was the outcome of presumption and supposition. Guidance in this respect, if needed, can be sought from “Shafique Sultan vs. Mst. Asma Firdous and others” (2017 SCMR 393). The relevant extract from the judgment is reproduced below:

“6. We have also gone through the list of dowry articles (Ex.P2) and found that the same consist of articles of daily use which are generally given to brides at the time of their marriages. We have not found any article(s) which may be termed as extravagate or beyond the financial resources of the respondent’s family. Giving dowry articles to daughters is in line with custom/tradition and practices which are deeply rooted in our society and are followed by parents of all classes irrespective of their financial status.”

It is also held in the case of “Muhammad Habib vs. Mst. Safia Bibi and others” (2008 SCMR 1584) that:

“4. Having heard learned counsel for the petitioner in the light of the material on file, we find that learned High Court has rightly observed “the evidence of the petitioner is insufficient to rebut the version of the plaintiff/respondent, Mst. Safia Bibi, ... The learned appellate Court after proper appreciation of the evidence on record modified the decree of learned Judge Family Court and accepted the appeal of the plaintiff/respondent regarding her whole claim of Rs. 1,80, 7000/-. The perusal of list Exh.P.1 reveals that these are the articles which are ordinarily given to a bride at the time of the marriage. Both the Courts below have given concurrent findings which are based upon substantial evidence and the petitioner has not been able to controvert the same during the trial, as such the petitioner has failed, to show any illegality or irregularity committed by the Courts below in the impugned judgments so as to warrant

interferenceby this Court in exercise of its constitutional jurisdiction.”

The learned Additional District Judge, while exercising his appellate jurisdiction, took into account the said aspect of custom of our society and principle of law and held the “respondent” entitled to recover dowry articles mentioned in the list Exh.P-2 or in the alternative prices thereof Rs. 7,50,000/-. The alternate value thereof as determined by the learned lower Appellate Court is quite justified keeping in view the period of subsistence of marriage, which lasted for more than 2 years.

9. On comprehensive analysis of both the judgments, I am of the considered view that the learned Additional District Judge was justified to interfere with the findings recorded by the Court below. The learned Appellate Court has rightly appraised the evidence and the conclusion derived therefrom is unexceptionable, which calls for no interference in constitutional jurisdiction.

1. The nutshell of above discussion is that instant petition is devoid of any merits, Resultantly, the same is dismissed in limine.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 419

Present: Abid Aziz Sheikh, J.

Chaudhery MUHAMMAD SHAHEEN FAISAL--Petitioner

versus

FAMILY COURT, RAWALPINDI etc.--Respondents

W.P. No. 1928 of 2020, decided on 17.9.2020.

Constitution of Pakistan, 1973--

----Art. 199--Suit for maintenance allowance--Interim order--Determination of maintenance allowance--Maintainability--Direction to--Counsel for petitioner, at very outset confronted, that how this writ petition is maintainable against interim maintenance order--She submits that petitioner will not press this petition and will be satisfied if his financial status be considered at time of final decrees while determining maintenance allowance--Family Court will decide matter expeditiously and also consider stance of petitioner regarding his financial status while determining maintenance allowance at time of final judgment and decree--Petition disposed of. [Pp. 420] A & B

Ms. Asma Mushtaq,Advocate for Petitioner.

Date of hearing: 17.9.2020.

Order

Learned counsel for the petitioner, at the very outset confronted, that how this writ petition is maintainable against the interim maintenance order. She submits that petitioner will not press this petition and will be satisfied if his financial status be considered at the time of final decrees while determining the maintenance allowance. Further requests that direction may be issued to the learned Family Court for early disposal of the main suit, which was otherwise required to be decided within period of six (06) months under the relevant law.

2. In view of above, this petition is disposed of being not pressed. However, learned Family Court will decide the matter expeditiously and also consider the stance of the petitioner regarding his financial status while determining the maintenance allowance at the time of final judgment and decree.

(Y.A.) Petition disposed of

PLJ 2021 Lahore 420

Present:Ch. Muhammad Iqbal, J.

Mian KHURSHEED ALAM WATTOO etc.--Petitioners

versus

ADJ, PAKPATTAN etc.--Respondents

W.P. No. 59574 of 2019, decided on 11.12.2020.

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

----O.I R. 10--Constitution of Pakistan, 1973, Art. 199--Suit for ejectment--Application for impleadment as party during pendency of suit--Dismissed--Civil revision--Dismissed--Violation of terms and conditions of rent agreement--Direction to--Report of local commission--Challenge to--It is settled law that in absence of a necessary party no effective decree or order can be passed--Order and judgment passed by Courts below are illegal, against record and liable to be set aside--Facts and consistent law on subject has not been taken into consideration by Courts below and illegally dismissed application under Order I Rule 10, CPC of petitioners, as such, same are liable to be set-aside--However, Respondent No. 3/plaintiff is directed to file amended suit after impleading petitioners as defendants before trial Court who shall decide suit strictly on merits and in accordance with law--Petition allowed.

[Pp. 422 & 423] A, B, C & D

PLD 1982 SC 46, PLD 1993 SC 147, 2020 SCMR 483 and 2016 SCMR 24 ref.

Ch. Awais Ahmad Qazi, Advocate for Petitioners.

Mr. Arshad Ali Chohan, Advocate for Respondents.

Date of hearing: 11.12.2020.

Order

Through this writ petition, the petitioners have challenged the legality of order dated 20.07.2019 passed by the learned Civil Judge, Pakpattan Sharif whereby application under Order I Rule 10, CPC filed by the petitioners was dismissed and also assailed the judgment dated 12.09.2019 passed by the learned Additional District Judge, Pakpattan Sharif who dismissed the Civil Revision of the petitioners.

1. Brief facts of the case are that Respondent No. 3/plaintiff Muhammad Altaf Hussain filed suit for ejectment along with permanent injunction as consequential relief against proforma Respondents No. 4 to 6 contending therein that he is owner of plot measuring 05-Marlas 1-sarsahi comprising Khewat No. 1958/1985, Khatooni No. 2086, Khasra No. 965/2 situated at Machli Chowk to Raziq Dad Pakpattan Sharif and proforma Respondent Nos. 4 to 6 are in possession being his lessees. Respondent No. 3 stated that they violated the terms and conditions of mutual understanding and refused to vacate the suit property. Petitioners filed application under Order I Rule 10, CPC which was dismissed by the learned trial Court videorder dated 20.07.2019. The civil revision of the petitioners was also dismissed by the learned Revisional Court vide judgment dated 12.09.2019. Hence, this writ petition.

2. I have heard the learned counsels for the parties at full length and gone through the entire record with their able assistance.

3. Respondent No. 3 filed suit for ejectment along with permanent injunction against Khuda Bakhsh, Naeem Khan and Munna with regard to the suit land without impleading the present petitioner as defendants. The proforma Respondents No. 4 to 6 have categorically mentioned in the written statement that they are tenants of the petitioners. In the civil suit of Respondent No. 3 the learned trial Court appointed the revenue officer as local commission who in Paragraph No. 9 of his report has mentioned that proforma Respondents No. 4 to 6 are tenants of the petitioners Khursheed Alam Wattoo, Advocate and Ghulam Saddid-ud-Din Advocate and legal heirs of Muhammad Shafi. For ready reference, Paragraph No. 9 of report is reproduced as under:

نمبر 9۔ موقعہ پر فریقین/متعلقین اور معززین کے بیان قلمبند کیے گئے جو کہ لف ہیں۔ الطاف حسین مدعی نے کہا ہے کہ میرے پلاٹ پر فریق دوئم خدا بخش وغیرہ ناجائز قابض ہیں۔ جبکہ موقعہ پر خدا بخش ولد محمد بخش قوم رحمانی، شمیر احمد ولد رحمت علی بھٹی کرایہ داران منجانب خورشید عالم وٹو ایڈووکیٹ و غلام سدید الدین ایڈووکیٹ اور وارثان محمد شفیع عرصہ دراز سے برلب پختہ سڑک رازق داد چوک تا مچھلی چوک قابض و متصرف ہیں۔ جبکہ نعیم خاں ولد نواب خاں اور منا ولد اسلام الدین (فریق دوئم) کا قبضہ موقعہ پر تصدیق نہ ہوا ہے۔ مدعی الطاف حسین بروئے وثیقہ نمبر 2499 مورخہ 24.10.2009 کو نمبر خسرہ 965/2 برقبہ 2-K-6M-0S کا46/414 بقدر 5M-1S کا مذکورہ نمبر خسرہ میں دیگر حقداران کے ساتھ مشترکہ مالک/حقدار ہے۔ اور اس کے پاس قبضہ ہے۔ (جاری ہے)

Petitioners filed application under Order I Rule 10, CPC asserting that they are owners in possession of the property through Respondents No. 4 to 6 whereas the land of Respondent No. 3 is lying under a constructed road as such the petitioners are necessary and proper parties to the suit. It is settled law that in the absence of a necessary party no effective decree or order can be passed. Reliance is placed on the cases titled as Mst. Maqbool Begum etc. vs. Gullan & others (PLD 1982 SC 46), Province of the Punjab through Member Board of Revenue (Residual Properties), Lahore and others vs. Muhammad Hussain through LRs and others(PLD 1993 SC 147), Dr Saleem Javed and others vs. Mst. Fauzia Nasim and others (2003 SCMR 965), Government of Balochistan, CWPP&H Department and others vs. Nawabzada Mir Tariq Hussain Khan Magsi and others (2010 SCMR 115) and Muhammad Siddique (Deceased) through L.Rs. and others vs. Mst. Noor Bibi (Deceased) through L.Rs. and others (2020 SCMR 483). As such, order and judgment passed by the learned Courts below are illegal, against the record and liable to be set aside.

5. The aforementioned facts and consistent law on the subject has not been taken into consideration by the learned Courts below and illegally dismissed the application under Order I Rule 10, CPC of the petitioners, as such, the same are liable to be set-aside. Reliance is placed on the case titled as Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others (2016 SCMR 24).

1. In view of above, this writ petition is allowed. Order dated 20.07.2019 passed by the learned Civil Judge, Pakpattan Sharif and judgment dated 12.09.2019 passed by the learned Additional District Judge, Pakpattan Sharif are hereby set aside and application under Order I Rule 10, CPC filed by the petitioners is accepted. However, Respondent No. 3/plaintiff is directed to file amended suit after impleading the petitioners as defendants before the learned trial Court who shall decide the suit strictly on merits and in accordance with law as early as possible preferably within six months.

(Y.A.) Petition allowed

PLJ 2021 Lahore 423

Present:Ch. Muhammad Iqbal, J.

IMAM DIN etc.--Petitioners

versus

GOVERNMENT OF PAKISTAN etc.--Respondents

W.P. No. 13404 of 2012, heard on 9.10.2019.

Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975)--

----Ss. 8 & 10--Constitution of Pakistan, 1973, Art. 199--Allotment of land being refugees--Filing of reference against petitioners for cancellation of allotments--Evacuee trust property--Acceptance of reference--Declaration of property as evacuee trust property--Revision petition--Dismissed--Oral assertion of petitioners--Congstanding entries--Powers of chairman evacuee trust property--Jurisdiction--Exclusive authority--Determination of status--Challenge to--Oral assertion of petitioners cannot be considered sufficient to rebut documentary evidence rather documentary evidence take preference over verbal depositions--A document can be rebutted by document having better legal value only--Petitioners got aforementioned lands allotted against evacuee claim but their allotment was cancelled vide order dated 02.12.2006 by Chairman, Evacuee Trust Property Board which order as per available record has never been reversed by any competent authority--Property which is an evacuee trust property cannot be allotted to any evacuee claimant--Petitioners in instant writ petition claimed that suit land was allotted to them against Khata RL-II No. 695 dated 17.09.1964, petitioners in (W.P. No. 14406/12) claimed their allotment against Khata RL-II No. 696, dated 17.09.1964 and petitioners in W.P. No. 13405/12 claimed suit land against Khata RL-II Nos. 693 and 694 dated 22.08.1964 which allotments are conspicuously made after target date i.e. 1st June 1964, as such, the; Chairman, Evacuee Trust Property Board was well within jurisdiction to take cognizance of reference, who after proper adjudication rightly cancelled allotments of petitioners and has committed no illegality which decision has rightly been upheld by Revision Authority--Petition dismissed.

[Pp. 426, 428 & 429] A, B, D & E

Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975)--

----S. 8--Competency of chairman--Chairman is competent to declare status of evacuee property as an Evacuee Trust Property by issuing notification and he is also empowered to cancel allotment or alienation as case may be of said property. [P. 427] C

2009 SCMR 210, 2000 SCMR 1929 and 2005 SCMR 907 ref.

Ch. Iqbal Ahmad Khan, Advocate for Petitioner.

Mr. Shoaib Ahmad Ranjha, Assistant Attorney General for Respondent No. 1.

M/s. Nassir Ahmad Awan & Rana Zahid Nasim Shahid, Advocates for Respondents No. 2 & 3/ETPB.

Date of hearing: 9.10.2019.

Judgment

This single judgment shall dispose of titled writ petition along with connected Writ Petition Nos. 13405 & 14006 of 2012 as subject matter of these petitions is same as well as common questions of law and facts are involved.

1. Through these writ petitions, the petitioners have challenged the legality of order dated 02.12.2006 passed by the Chairman, Evacuee Trust Property Board, Govt. of Pakistan, Lahore whereby he declared the suit land as an evacuee trust property and cancelled the allotment of the petitioners. Against the above order petitioners preferred revision before the Revisional Authority/ Secretary to the Government of Pakistan, Ministry of National Harmony, National Harmony Division, who dismissed Revision Petition of the petitioners vide order dated 16.03.2012.

2. Brief facts of these Writ Petitions are that:-

(i) in W.P. No. 13404/12 the petitioner Imam Din got allotted land measuring 109-Kanals 7-Marlas comprising Khasra Nos. 22, 23 in Square No. 397, Khasra Nos. 1, 9 and 10 in Square No. 398, Khasra Nos. 2, 4, 5, 6, 14, 16, 17, 18/2, 20 and 25/2 in Square No. 399 through RL-II Khata No. 695 dated 17.09.1964 situated within the Revenue Estate Shor Kot Janubi, Tehsil Shor Kot, District Jhang.

(ii) In Writ Petition No. 14406/2012 the father of the petitioners namely Ghulam Rasool who was refugee got allotted land measuring 176-Kanals 6-Marlas comprising Khasra Nos. 24 and 25 in Square No. 385, Khasra No. 6 in Square No. 400, Khasra Nos. 6, 7/1, 8/2, 12, 15, 19/3 and 20 in Square No. 401, Khasra Nos. 5/2, 6/2, 10, 11 and 15 in Square No. 402, Khasra No. 7 and 14 in Square No. 403, Khasra No. 5/2 in Square No. 404, Khasra Nos. 3/2, 5, 10, 12, 13, 15 and 25 in Square No. 371 vide RL-II Khata No. 696 dated 17.09.1964 situated within the Revenue Estate Shor Kot Janubi, Tehsil Shor Kot, District Jhang.

(iii) The predecessor-in-interest of the petitioners namely Janan and Nizam Din being refogees got allotted land measuring 159-Kanals 8-Marlas comprising Khasra Nos. 5, 6, 15, 16, 24 and 25 in Square No. 394, Khasra Nos. 1, 2, 3, 4, 5, 10, 11, 12, 13, 18/2, 19 and 20 in Square No. 395 Khasra Nos. 10, 11/1 and 20 in Square No. 396 vide RL-II Khata Nos. 693 and 694 dated 22.08.1964 situated within the revenue estate Shorkot Janubi, Tehsil Shorkot, District Jhang.

Respondent No. 3/Deputy Administrator, Evacuee Trust Property, Jhang filed reference under Sections 8 & 10 of the Act No. XIII of 1975 against the petitioners for declaring the suit property as an evacuee trust property and also requested for the cancellation of allotments of RL-II Khata Nos. 693, 694, 695 and 696. The Chairman, Evacuee Trust Property Board declared the suit property as an evacuee trust property and also cancelled the allotment of the petitioners vide order dated 02.12.2006. The petitioners filed revision petition before the Revisional Authority/Secretary to the Government of Pakistan, Ministry of National Harmony, National Harmony Division, which was dismissed vide order dated 16.03.2012. Hence, these writ petitions on the grounds that the impugned orders passed by the Chairman as well as the Secretary, Government of Pakistan are illegal and not sustainable in the eyes of law; that the writ petitioners land was owned by Bawa Ragbar Daas Chela Bawa Kishan Daas in his personal capacity and after his death inheritance mutation was incorporated on 29.10.1929 in favour of Bawa Ragbar Daas Chela Bawa Kishan Daas, as such, suit property is not an evacuee trust property and land was lawfully allotted to the petitioners.

1. I have heard the arguments advanced by the learned counsels for both the parties and gone through the record with their able assistance.

5. From perusal of the revenue record appended with this petition as well as the longstanding entries therein showing the disputed land as evacuee trust property which entries have not been rebutted through any documentary evidence. The revenue record commencing from 1925-26, 1935-36 and 1943-44 clearly establishes that the suit property belongs to Bawa Raghberdas Chela Kishandas, caste Faqir Bairagi which factum is sufficient for declaring the property as an Evacuee Trust Property. Mere oral assertion of the petitioners cannot be considered sufficient to rebut the documentary evidence rather documentary evidence take preference over the verbal depositions. A document can be rebutted by the document having better legal value only. In this regard reliance is placed on the cases titled as Abdul Ghani and others vs. Mst. Yasmeen Khan and others (2011 SCMR 837) and Saleem Akhter vs. Nisar Ahmad (PLD 2000 Lahore 385). The petitioners got the aforementioned lands allotted against the evacuee claim but their allotment was cancelled vide order dated 02.12.2006 by the Chairman, Evacuee Trust Property Board which order as per available record has never been reversed by any competent authority. When the property has been declared as an evacuee trust property and such longstanding entries were also made part of quadrennial periodical record (Jamabandies) which has acquired the presumption of correctness under Article 100 of Qanun-e-Shahadat Order, 1984 and said presumption has not been displaced by the petitioners though any believable and trustworthy record. With regard to longstanding entries in the revenue record the Hon’ble Supreme Court of Pakistan has declared that the revenue record is sufficient for proving the status of a suit property belonging to a trust and non-production of evidence regarding the factum of creation of a trust is considered as inconsequential. Reliance is placed on the cases titled as District Evacuee Trust Committee vs. Mashraf Khan and 3 others (1989 SCMR 1636), District Evacuee Trust Committee vs. Muhammad Umar and others (1990 SCMR 25) and Secretary, District Evacuee Trust Property vs. Qazi Habibullah and 2 others (PLD 1991 SC 586). Further the Hon’ble Supreme Court of Pakistan in a case titled as Qazi Akbar Jan and others vs. The Chairman District Evacuee Trust Committee, Peshawar and others (1991 SCMR 2206) has held that where sufficient prima facie evidence was adduced showing the property was attached to a religious or charitable institution and veracity of such evidence was not displaced by any other reliable evidence in that eventuality the burden of proving actual creation of trust is on the party asserting property was attached to a religious or charitable trust was not essential and such matter could be decided on the rule of preponderance of evidence.

“11. The above contention is devoid of any force as there is no evidence on record that any private religious trust was created by an individual. On the contrary, the above Revenue Record of the year 1895 indicates that it was a public religious trust. The property was shown to have been vested in the “مندر” through the incumbent of a religious office and not in any individual. There is a concurrent finding of the Settlement Commissioner and the High Court on the question that the above “مندر” was a public religious trust and because of that, even the Settlement Commissioner excluded the portion of the “مندر” from being treated as a private evacuee property. Even the Revenue Record for the year 1929 also contains the following entry in the column of “نام مالک مع احوال” which reads as follows:

ٹھاکر دوارہ با بر مانند با اہتمام گو سائیں مندادرشن چیلہ درگونند برھمن ساکن شاہ شیر۔

It is, therefore, evident that the High Court was justified in holding that the “مندر” Thakar Dawara and the land attached to it, was property attached to a religious trust. We may point out that in order to make a property attached to any charitable, religious or education trust or institution in terms of sub-section (2) of Section 4 of the Act, it is not necessary that the entire property should be used for the aforesaid purpose. What is required is, that the property should be attached to a trust or institution of the above nature. Since Thakar Dawara admittedly is a religious institution, the land attached to it, is also trust property”

6. Under Section 8 of the Evacuee Trusts Properties (Management and Disposal) Act, 1975, the Chairman is competent to declare the status of evacuee property as an Evacuee Trust Property by issuing notification and he is also empowered to cancel the allotment or alienation as the case may be of said property. Section 8 is reproduced as under:

“8. Declaration of property as evacuee trust property.--(1) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.

(2) If the decision of the Chairman under sub-section (1) is that an evacuee property is evacuee trust property, he shall, by notification in the official Gazette, declare such property to be evacuee trust property.

(3) If a property is declared to be evacuee trust property under sub-section (2), the Chairman may pass an order canceling the allotment or alienation, as the case may be, take possession and assume administrative control, management and maintenance thereof:

Provided that no declaration under sub-section (2) or order under sub-section (3) shall be made or passed in respect of any property without giving the persons having interest in that property a reasonable opportunity of being heard.”

The matter of declaration of the status of evacuee property as an evacuee trust by the Chairman ETPB came under judicial consideration of the Hon’ble Supreme Court in a case reported as Auqaf Department through Chief Administrator Auqaf Punjab, Lahore vs. Secretary, Ministry of Religious Zakat, Ushar and Minorities Affairs Government of Pakistan, Islamabad and 3 others (2009 SCMR 210) wherein it has been observed that it is the Chairman of the Evacuee Trust Property Board who can declare the status of property as “evacuee trust property” by issuing a notification and he is also empowered to cancel the allotment or alienation, as the case may be, of the said property. Similarly Section 8 of the ETPB Act, 1975 conferred exclusive authority to the Chairman to adjudicate and decide dispute of title with regard to any property attached to the religious, educational charitable trust.

7. The next issue whether the evacuee trust property can be allotted against verified claim. As discussed above, it can conveniently be observed that the property which is an evacuee trust property cannot be allotted to any evacuee claimant. For ready reference Section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 is reproduced as under:

1. Compensation pool.--(1)

(2) Immovable evacuee property attached to any charitable, religious or education trust or institution and such other evacuee property as may be specified in this behalf by the Central Government by notification in the official gazette, shall not from part of the compensation pool constituted under sub-section (1).

(3) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be referred to the Chairman Evacuee Trust Property Board whose decision thereon shall be final

and shall not, except as provided in sub-section (4), be called in question in any Court: Provided that no order under this sub-section shall be passed without giving persons interested a reasonable opportunity of being heard.

Section 4(3) confers powers for determination of status by Evacuee Trust Property Board, as such, the Chairman is competent authority to decide this question of status of evacuee trust property.

8. Under Section 10 of the Act, 1975 all the allotments of the evacuee trust property/land made by the settlement department after 1st June 1964 are illegal. Petitioners in the instant writ petition claimed that the suit land was allotted to them against Khata RL-II No. 695 dated 17.09.1964, petitioners in (W.P. No. 14406/12) claimed their allotment against Khata RL-II No. 696, dated 17.09.1964 and petitioners in W.P. No. 13405/12 claimed the suit land against Khata RL-II Nos. 693 and 694 dated 22.08.1964 which allotments are conspicuously made after the target date i.e. 1st June 1964, as such, the Chairman, Evacuee Trust Property Board was well within jurisdiction to take cognizance of the reference, who after proper adjudication rightly cancelled allotments of the petitioners and has committed no illegality which decision has rightly been upheld by the Revision Authority. Reliance is placed on the cases titled as Deputy Administrator, Evacuee Trust Property, Karachi and others vs. Abdul Sattar and another (2000 SCMR 1929) and Secretary to the Government of Pakistan, Minorities Affairs Division, Islamabad and 2 others vs. Mst. Shah Jehan Bano and others (2005 SCMR 907).

1. In view of above, these writ petitions are dismissed being devoid of any merit.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 429

Present: Miss Aalia Neelum, J.

MUHAMMAD ASIF MALIK--Petitioner

versus

EX-OFFICIO JUSTICE OF PEACE, LAHORE and 5 others--Respondents

W.P. No. 14677 of 2014, decided on 19.10.2017.

Constitution of Pakistan, 1973--

----Art. 199--Purchasing of land for LDA City Project--Petitioner was one of development partner of LDA--Sale-deed--Application for registration of case before justice of peace--Allowed--Non-mentioning of description of place of occurrence--Obligation on litigants--Powers of justice of peace--Challenge to--While approaching Court, a litigant must state correct facts and come with clean hands--In every case careful exercise is also necessary to ensure that allegations are not motivated by extraneous considerations and imposes an obligation upon litigant to disclose true facts and approach Court with clean hands--Section 22-A, 22-B, Cr.P.C empowered justice of peace for issuance of directions for registration of case but this power was never supposed to be exercised in a mechanical manner--Courts were never supposed to shut their eyes from other aspects of case and to pass order for registration of case on false applications of complainant--Petition accepted. [P. 431] A

Mr. Zabi Ullah Nagra, Advocate for Petitioner.

Mr. Muhammad Nasir Chohan, Addl. Advocate General for Respondent.

Date of hearing: 19.10.2017.

Order

Through instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner prayed for setting aside the order-dated 06.05.2014 pasted by the learned Additional Sessions Judge, Lahore in his capacity as Ex-officio Justice of Peace.

1. Arguments heard. Record perused.

2. From the record available on the file, it reveals that the petitioner was one of the development partner of the LDA and they purchased land measuring 95-Kanal 13 Marlas for LDA City project from the real owner of the land namely Jawad Hassan on 28.01.2014 through registered sale-deed. It was observed that in the application for registration of criminal case, the description of the land and the length of the land under possession and cultivated by the Respondents No. 3 to 6 was not mentioned therein. Mere mentioning that they took some area from Sheikh Javed on “Thaika”, was no description of the land/area and did not satisfy the requirement of law to establish place of occurrence. The application for registration of criminal case must contain particulars adequately revealing the locality and the land where alleged occurrence took place. None mentioning of the description of the place of occurrence and the fact that the petitioner is one of the development partner of the LDA indicates that the Respondents No. 3 to 6 did not approach the learned Ex-ofiicio Justice of Peace with clean hands. While approaching the Court, a litigant

must state correct facts and come with clean hands. In every case careful exercise is also necessary to ensure that the allegations are not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and approach the Court with clean hands. Sections 22-A, 22-B, Cr.P.C empowered the justice of peace for issuance of directions for registration of case but this power was never supposed to be exercised in a mechanical manner. The Courts were never supposed to shut their eyes from other aspects of the case and to pass order for registration of case on false applications of the complainant.

1. For the foregoing reasons, petition in hand stands accepted and impugned order dated 06-05-2014 passed by Ex-officio Justice of Peace/Addl. Sessions Judge, Lahore is hereby set aside.

(Y.A.) Petition accepted

PLJ 2021 Lahore 431

Present: Shams Mehmood Mirza, J.

MUHAMMAD SHOAIB TABISH RASOOL and 3 others--Petitioners

versus

GOVERNMENT OF PUNJAB through Secretary Law and Parlimentary Affairs Lahore and 2 others--Respondents

W.P. No. 33918 of 2020, decided 28.10.2020.

Punjab Judicial Service Rules, 1994--

----S. 7(a)(ii)--Constitution of Pakistan, 1973, Art. 199--Advertisement for post of civil judges/magistrates--Petitioners were applied for post of civil judges/magistrate--Issuance of explanation--Requirement of rule for petitioners--Two years active practice--Scope of--Nature of job-Practical experience--Understanding and interpretation of rule--Challenge to--Explanation merely facilitates proper understanding and interpretation of Rule 7(1)(a)(ii) in order to avoid any confusion or misunderstanding in its application--Reading it as such does not make it larger than Rule 7(1)(a)(ii)--Explanation is an essential constituent of Rule 7 and brings forth a practical aspect related to recruitment to post of civil judge cum magistrate--Nature of job requires practical experience which a candidate must possess at time of recruitment and not experience acquired in distant past--Explanation thus is integral to Rule 7 and is a useful tool to understanding scope and intent thereof--Argument put forward by petitioners is not tenable and is accordingly repelled--Petitioners have failed to make out any case for striking down Explanation to Rule 7(a) of Rules--Petition dismissed. [Pp. 433 & 434] A & B

Mr. Zahid Umar, Advocate for Petitioners.

Date of hearing: 28.10.2020.

Order

This writ petition called into question the vires of Explanation to Rule 7(a) of the Punjab Judicial Service Rules, 1994 (the Rules).

1. The petitioners are law graduates who after obtaining their degrees were enrolled as advocates with the Punjab bar council and after practicing as advocates for a number of years joined PESSI.

2. The Government advertised for recruitment to the posts of civil judges/magistrates which the petitioners are desirous of applying. They are, however, aggrieved of Explanation to Rule 7 (the Explanation) which is alleged to be ultra vires to Rule 7(a)(ii).

3. Rule 7 insofar as it is relevant is reproduced hereunder:

4. Qualification.--(1) No person shall be appointed to a post in the service by initial recruitment unless:-

(a) in case of appointment to a post of Civil Judge-cum-Magistrate, he possesses a degree in law from a recognized University entitling him to practice the profession of Law or is a Member of the Faculty of Advocates of Scotland.

(i) he possesses a degree in Law from a recognized University entitling him to practice the profession of law or is a Member of the Faculty of Advocate of Scotland.

(ii) he has actively practiced the profession of law for not less than two years after having been enrolled as an Advocate and

(iii) he is domiciled in the Punjab.

Explanation:- For the purposes of this clause--

(i) The expression “practiced the profession of law” shall include any period of Government service by a person as--

(a) District Attorney, A Deputy District Attorney or an Assistant District Attorney; or

(b) Full time prosecutor authorized to conduct prosecution on behalf of the Government; and

(ii) To prove active practice the candidate shall declare by an affidavit that--

(a) He had been actively practicing the profession of law during the two years preceding the date of advertisement; and

(b) During this period he had not engaged himself in any other whole time service, business or, as the case may be, occupation for gain. (Emphasis supplied)

1. The precise argument of the petitioners is that the Explanation requires a candidate to be in active practice for a period of two years immediately preceding the date of advertisement seeking recruitment, inter alia, to the post of civil judge cum Magistrate, which offends Rule 7(1)(a)(ii) which only mandates an applying candidate to have actively practiced the profession of law for not less than two years after having been enrolled as an advocate. The Explanation, it is argued, enlarges the scope of Rule 7(l)(a) (ii), which is not permissible on the reading of its plain text. In this regard, reliance is placed on the judgment reported as Commissioner of Income Tax Legal Division v. Khurshid Ahmad and others 2016 PTD 1393.

2. The relevant portion of the aforementioned judgment rendered by the Hon’ble Supreme Court on which reliance is placed by the petitioners reads as under:

An explanation is appended to a section of an enactment to stipulate the meaning of a word, term, or phrase, and becomes part and parcel of the enactment. Its function is to clear the ambiguity and explain the meaning of the words used in the section to which it is appended. It is an intrinsic aid available to the reader to understand and appreciate the statute and particularly the section to which such explanation has been affixed. (Emphasis supplied)

7. The aforementioned excerpt from the judgment of the Hon’ble Supreme Court in fact militates against the stance of the petitioners and the basis on which challenge has been made to the Explanation. The Explanation merely facilitates the proper understanding and interpretation of Rule 7(1)(a)(ii) in order to avoid any confusion or misunderstanding in its application. Reading it as

such does not make it larger than Rule 7(l)(a)(ii). The explanation is an essential constituent of Rule 7 and brings forth a practical aspect related to recruitment to the post of civil judge cum magistrate. The very nature of the job requires practical experience which a candidate must possess at the time of recruitment and not the experience acquired in distant past. The Explanation thus is integral to Rule 7 and is a useful tool to understanding the scope and intent thereof. The argument put forward by the petitioners is not tenable and is accordingly repelled.

8. In the circumstances, the petitioners have failed to make out any case for striking down the Explanation to Rule 7(a) of the Rules. This writ petition being devoid of any merit is accordingly dismissed.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 434 [Rawalpindi Bench Rawalpindi]

Present: Mirza Viqas Rauf, J.

RASHEEDA BEGUM--Petitioner

versus

IBRAR BI and 2 others--Respondents

C.R. No. 711 of 2014, decided on 10.10.2019.

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

----S. 115, O.XIII R. 1 & 2--Suit for declaration and permanent injunction--Application for producing of additional documentary evidence--Completion of petitioner’s evidence--Dismissal of application--Gift-deed--Restriction upon Court--Exercising of Powers by Court--Scope of revisional jurisdiction--Challenge to--In terms of Rule 1 parties or their pleaders are obliged at first hearing of suit to produce all documentary evidence of every description in their possession or power on which they intend to rely whereas Rule 2 places a restriction upon Court from receiving any document at any subsequent stage, which does not fulfill requirement of sub-rule (1)--Such restriction is though not absolute but party desirous to produce such document has to show a good cause of its non-production to satisfaction of Court-- petitioner has failed to plead a good cause for the satisfaction of the Court, persuading the Court to exercise its powers under sub-rule (2)--Revisional jurisdiction is always guided by principles enshrined in Section 115 of “CPC”-- Revisional Court can only exercise jurisdiction if some patent illegality or material irregularity appears on surface of record-- Revisional jurisdiction has a very limited scope and unless petitioner(s) establish(es) that judgment(s) or order(s) under assailance suffer(s) with infirmities as hedged in Section 115 of “CPC” he/they could not succeed. As no illegality or material irregularity is pointed out by petitioner in concurrent findings of Courts below, so exercise of revisional jurisdiction is unwarranted--Revision petition dismissed. [P. 437] A, B & C

Ms. Asma Mushtaq, Advocate for Petitioner.

Syed Ikram Gilani, Advocate for Respondents.

Date of hearing: 10.10.2019.

Order

Through instant civil revision, the petitioner namely Rasheeda Begum assails the vires of judgment dated 16th May, 2014, whereby the learned Additional District Judge, Rawalpindi, while dismissing her appeal affirmed the order dated 14th May, 2013 passed by the learned Civil Judge Class-I, Rawalpindi.

1. The facts in precision necessary for adjudication of instant petition are that the petitioner instituted a suit for declaration along with permanent injunction challenging the gift deed No. 5769 dated 19th July, 2000 effected in favour of the respondents. The suit was contested by the respondents, who filed their joint written statement. From the divergent pleadings of the parties, necessary issues were framed. During the proceedings, an application was moved by the petitioner seeking permission to produce additional document, which was duly responded by the respondents. The learned trial Court after hearing both the sides dismissed the said application by way of order dated 14th May, 2013. The petitioner, feeling aggrieved from the said order though preferred an appeal before the learned Additional District Judge, Rawalpindi but same was dismissedvide impugned judgment dated 16th May, 2014, hence this petition under Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred as “CPC”).

2. Learned counsel for the petitioner submitted that initially document in question was not available to the petitioner, so the same neither could be relied nor produced before the Court. Added that document in question is necessary for just decision of the case. Learned counsel maintained that learned trial Court has ample power under Order XIII Rule 2 of “CPC” to grant permission for this purpose and there was no legal bar to present document in question in evidence. It is contended that learned trial Court has erred in law while refusing the petitioner to present the agreement in question. Learned counsel further contended that appellate Court has also failed to exercise its lawful jurisdiction and appeal was dismissed by way of impugned judgment without properly adverting to the relevant law.

3. On the other hand, learned counsel for the respondents resisted the petition with hilt.

4. Heard. Record perused.

5. Perusal of record reveals that suit was instituted by the petitioner, while challenging gift deed No. 5769 dated 19th July, 2000 effected in favour of the respondents regarding disputed house on the ground that the same was given by Ali Asghar to the petitioner as dower. Suit was duly contested by the respondents, who filed their written statement and from the divergent pleadings of the parties, necessary issues were framed by the learned trial Court. It is evident from the record that when oral evidence of the petitioner was completed and case was fixed for documentary evidence, she then moved application seeking permission to lead additional evidence in the shape of agreement dated 01st December, 2007 purportedly executed between the petitioner and her husband Ali Asghar (predecessor-in-interest of the respondents), which was dismissed by the learned trial Court by way of order dated 14th May, 2013. The order of learned trial Court was though assailed through appeal but same was also dismissed by way of judgment dated 16th May, 2014.

6. In order to properly appreciate the matter in issue, it would be advantageous to first have a recourse to Order XIII Rules 1 and 2 of “CPC” which are reproduced below:

“1. Documentary evidence to be produced at first hearing.--(1) The parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced.

(2) The Court shall receive the documents so produced: Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.

(3) On production of documents under this rule, the Court may call upon the parties to admit or deny the documents produced in the Court and record their admission or, as the case may be denial.

1. Effect of non-production of documents.--No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirement of Rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing.”

(Underlining is supplied for emphasizes)

It is manifestly clear from the above that in terms of Rule 1 the parties or their pleaders are obliged at the first hearing of the suit to produce all the documentary evidence of every description in their possession or power on which they intend to rely whereas Rule 2 places a restriction upon the Court from receiving any document at any subsequent stage, which does not fulfill the requirement of sub-rule (1). Such restriction is though not absolute but the party desirous to produce such document has to show a good cause of its non-production to the satisfaction of the Court. Simultaneously the Court receiving any such evidence shall then record the reasons for so doing. When application of the petitioner is seen on this perspective, it reveals that she pleaded the following reason:

“2۔ یہ کہ کاغذات ہذا اقرار نامہ (معاہدہ مابین فریقین) اور بیان حلفی بوقت دعویٰ دائری سائلہ کے پاس موجود نہ تھے۔ بعد ازاں گھر کی صفائی کرتے وقت یہ کاغذات سائلہ کو ملے۔”

It is clearly evident from the above that the petitioner has failed to plead a good cause for the satisfaction of the Court, persuading the Court to exercise its powers under sub-rule (2). Since the petitioner did not produce the document in question according to Order XIII Rule 1 of “CPC”, so she was precluded to produce the same at subsequent stage. The Courts below while declining the petitioner to produce such document were well versed with the mandate of Order XIII of “CPC”. The concurrent conclusion of both the Courts below is in consonance with the well settled principles of law.

8. The revisional jurisdiction is always guided by the principles enshrined in Section 115 of “CPC”. The revisional Court can only exercise jurisdiction if some patent illegality or material irregularity appears on the surface of record. The revisional jurisdiction has a very limited scope and unless the petitioner(s) establish(es) that judgment(s) or order(s) under assailance suffer(s) with infirmities as hedged in Section 115 of “CPC” he/they could not succeed. As no illegality or material irregularity is pointed out by the petitioner in the concurrent findings of the Courts below, so exercise of revisional jurisdiction is unwarranted. Consequently this civil revision, being without any merits is dismissed in limine.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 438 (DB)

Present:Ch. Muhammad Masood Jahangir and Shams Mehmood Mirza, JJ.

KAMAL DIN, etc.--Petitioners

versus

CHAIRMAN, FEDERAL LAND, COMMISSION, ISLAMABAD etc.--Respondents

W.P. No. 5958 of 2010, decided on 2.11.2020.

Constitution of Pakistan, 1973--

----Art. 199--Minor declaration--Gift-deed--Gift transaction was declared void--Appeal--Allowed--Gift transaction was declared valid--Suo moto revisional powers--Previous orders regarding validation of gift transaction were set a side--Writ petition--Dismissed--Appeal dismissed--Non-applicability of provisions of land reforms regulations--Challenge to--Conclusion of apex Court having stood final became past and closed chapter--Declarant was accommodated to surrender land according to his revised choice, so tendered, thus excess land equivalent to 9162 PIUs was resumed in favour of Land Commission, therefore he or his successor cannot agitate his any right or interest in property in dispute--Chairman Federal Land Commission without considering said aspects of case erred in law to set aside said orders while reopening pandora box, which stood already culminated up to apex Court of State--Counsel for writ petitioner of Writ Petition No. 7695/2010 that view of Chairman was perfect as per impact of ‘Qazalbash Waqfs case (PLD 1990 SC 99)--It was settled thereby that said decision would not effect pending cases, which shall be decided under provisions of Land Reforms Regulation, 1972, hence was not applicable in case in hand--Petitions allowed. [Pp. 441 & 442] A & B

1974 SCMR 409 ref.

Rana Muhammad Akhtar Khan, Advocate for Petitioners.

Mr. Tahreem Iqbal Butt, AAG for Respondents No. 3 & 4 and Petitioner (in Writ Petition No. 24410 of 2013).

Malik Noor Muhammad Awan, Advocate for Respondent No. 6.

Mr. Iqbal Ahmad Khan, Advocate for Respondent No. 7 and Petitioners (in Writ Petition No. 7695 of 2010).

Date of hearing: 2.11.2020.

Judgment

Ch. Muhammad Masood Jahangir, J.--For delivering this judgment, reference to the pleaded facts would be that Muhammad Abdullah son of Muhammad Hussain (predecessor of Respondents No. 5 & 6) was declarant under The Land Reforms Regulation, 1972 and being minor declaration on his end was filed by his father while disclosing in form LR-I that area of 2722-kanals 16-marlas was gifted out in favour of his sisters Nusrat Begum, Nuzhat Begum and Nasira Begum through Mutation No. 99 on 18th October, 1971, but Land Commissioner declared it void on 16th June, 1972. No doubt, thereafter it was reviewed by the same authority on 13th December, 1973 and declared the gift transaction to be invalid on the ground that it could not be said that the declarant’s father while making transaction as guardian of his minor son Muhammad Abdullah had acted in the interest of the latter by gifting away such a large area. However, in appeal Additional Chief Land Commissioner vide his order of 21st July, 1973 declared_the_gift transaction as valid, but the learned Member Federal Land Commission while exercising its suo moto revisional powers on 24th November, 1976 seaside afore-noted orders of his subordinate while holding that Mutation No. 99 in terms of para No. 7(1)(B) of the Regulation ibid was void. Although this order was assailed by the declarant, his three daughters (beneficiaries of said mutation) as well as their father before this Court by means of Constitutional Petition No. 351 of 1977, but without any success having been dismissed in limine on 29th March, 1977, which further sustained before the apex Court when their appeal No. 260/1977 dismissed on 29th October, 1991.

It was a hard fact that during the pendency of said appeal before the apex Court, Muhammad Abdullah declarant submitted choice before the Deputy Land Commissioner, Sahiwal while surrendering 1656-kanals 02-marlas equivalent to 9162 PIUs falling in different khasras of the joint holding. Consequently the said land was resumed as per desire and will of the declarant for its transfer to the sitting tenants. Although sisters/beneficiaries of Mutation No. 99 challenged it through appeal, but dismissed by the learned Land Commissioner, Multan on 23rd May, 1990. Thereafter on a move through application by the declarant for implementation of order dated 23rd May, 1990, the Deputy Land Commissioner on 08th July, 1991 directed that after resumption of 9162 PIUs as per choice of the declarant, fresh calculation of PIUs be carried out and khata of the resumed land be also separated from the khata of the declarant. No doubt, revision petitions of the declarant as well as his sisters before Chief Land Commissioner succeeded and while setting aside afore-noted orders, the matter was remanded to the Deputy Land Commissioner, Pakpattan for fresh decision after extending right of audience to the parties, who in compliance of the same on 27th January, 1997 resumed the excess land in favour of Land Commission according to the choice of the declarant under para No. 11(I) of the Regulation ibid while observing that Mutation No. 99 stood already declared void up to the apex Court and required submission of proposal for allotment of resumed land to the eligible tenants.

The appeal and then RORs were dismissed by the Land Commissioner, Multan and Chief Land Commissioner, Punjab vide orders of 12th July 2000 & 29th June, 2009 respectively. However, Revision Petition of the successors of the declarant and beneficiaries of Mutation No. 99 were allowed by the Chairman Federal Land Commission through order of 16th February, 2010, by merely concluding as under:

‘Under the circumstances, Federal Land Commission has no option but to accept the Revision Petition and set aside the order dated 27.01.1999, passed by the learned Deputy Land Commissioner Pakpattan, the order dated 12.07.2000 passed by the learned Land Commissioner Multan/Pakpattan and the order dated 29.06.2009 passed by the learned Chief Land Commissioner Punjab. It is also made clear that all the orders, decisions made during the status qua order issued by the Apex Court of Pakistan also declared null and void.’

Being aggrieved, this petition on behalf of the tenants and connected Writ Petition No. 24410/2013 by the State, whereas Writ Petition No. 7695/2010 was made by the sisters of the declarant (beneficiaries of Mutation No. 99). As the subject matter is identical and all these three petitions have been preferred against common impugned order, thus we propose to decide the same jointly through single judgment, however source of reference would be petition in hand.

1. Heard. Record scanned with the able assistance of learned counsel as well as learned Law Officer on behalf of the respective parties.

2. In the case in hand, the gift under consideration was made prior to 20th December, 1971, as such Clause (b) of Paragraph 7 (1) of the Regulation ibid is relevant, which recognized the validity of transaction relating to land struck before the said date provided the Land Commission constituted under the Regulation was satisfied with regard to its bona fide. However, proviso to this clause treated the gift made by the declarant on a different footing inasmuch as it precluded the Land Commission from holding any transfer of land or creation of right or interest or encumbrance by way of gift to be bona fide. Although such restriction on the power of Land Commission was relaxed regarding a gift made to an heir or, in certain circumstances to a widowed or unmarried sister, however, ‘Explanation I’ explained the word ‘heir’ to mean the donor’s wife or wives, sons, daughters, father, mother and sons and daughters of a deceased son or daughter. Whereas, the gift made to an unmarried or widowed sister was to be governed by sub-clause (ii) of the second proviso to paragraph 7 (1) (b), which provided that a gift could be treated as valid only if the ‘widowed’ or ‘unmarried’ sister of the donor had not received her due share of inheritance of ancestral land. The flow of the said provision irresistibly suggested that it referred to the agnatic rule that prevailed under the custom whereby the sisters were deprived of their personal law share in the ancestral land left by the common ancestor, which was applicable only in those cases where the inheritance had already opened prior to the making of the gift conquest upon the death of the common ancestor, there has been an unfair distribution of the ancestral land. Having faced identical proposition, the Hon’ble Supreme Court in the judgment reported as ‘Syed Muhammad Ahmad Shah & Co. versus Additional Chief Land Commissioner, Punjab, Lahore’ (1974 SCMR 409) has already declared a gift in favour of unmarried minor sister as void. In this case when matter in earlier cycle went before the apex Court on the same lines, the transaction of gift having already been declared void was maintained. Thus, the conclusion of the apex Court having stood final became past and closed chapter. Moreover, the declarant was accommodated to surrender land according to his revised choice, so tendered, thus excess land equivalent to 9162 PIUs was resumed in favour of the Land Commission, therefore he or his successor cannot agitate his any right or interest in the property in dispute. The Chairman Federal Land Commission without considering said aspects of the case erred in law to set aside the said orders while reopening the pandora box, which stood already culminated up to the apex Court of the State. The emphasis of Mr. Iqbal Ahmad Khan, Advocate/learned counsel for the writ petitioner of Writ Petition No. 7695/2010 that view of the learned Chairman was perfect as per impact of ‘Qazalbash Waqfs case (PLD 1990 SC 99). Suffice it to say that it was settled thereby that the said

decision would not effect the pending cases, which shall be decided under the provisions of Land Reforms Regulation, 1972, hence was not applicable in the case in hand.

1. Consequently, Constitutional Petition in hand and that of the State bearing Writ Petition No. 24410/2013 have substance, which are allowed, order impugned herein is set aside, whereas Writ Petition No. 7695/2010 filed by the beneficiaries of gift transaction is dismissed.

(Y.A.)

PLJ 2021 Lahore 442[Multan Bench, Multan]

Present:Abid Aziz Sheikh, J.

ASKARI BANK LIMITED--Plaintiff

versus

M/s. FATIMA ENTERPRISES LIMITED and others--Dependants

C.O.S. No. 2 of 2016, decided on 21.11.20219.

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

----S. 9--Availing of finance facilities--Application for renewal of finance facility--Extension of finance facility--Financial obligations--Failing to repayment of finance--Statement of account--Statement of account was signed by authorized officer--Challenge to--Statements of accounts are signed by Incharge Foreign Trade of plaintiff bank, who is also attorney of bank for filing of instant suit--Counsel for defendants did not dispute suit amount, however, perusal of record and statements of account show that admittedly facilities were lastly extended plaintiff bank could claim mark up only till expiry of contract period i.e. till expiry of contract period--Defendants No. 1 to 8 have not been able to raise any substantial question of law or fact requiring recording of evidence for its resolution--Appeal allowed. [Pp. 444 & 445] A, B & C

2018 CLD 1476, 2017 CLD 552 and 2016 CLD 29 ref.

Mr. Muhammad Sohail Iqbal Bhatti, Advocate for Plaintiff.

Mr. Furqan Naveed, Advocate for Defendants No. 1 to 8.

Mian Khurram Hashmi, Advocate for Defendant No. 14.

Date of hearing: 21.11.2019.

Judgment

This is suit under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance), seeking recover of Rs. 238, 528, 125.13 alongwith costs and cost of fund from the date of default till final realization of the decretal amount by sale of properties and other assets of Defendants No. 1 to 8. The plaintiff bank has also impleaded various other banks as defendants No. 9 to 16 as proforma defendants on the basis of their pari passu charges on Defendant No. 1 in the record of the Securities Exchange Commission of Pakistan (SECP).

1. As per averments of the plaint, the Defendant No. 1 (company) availed different finance facilities i.e. FAPC (OS)(Pledge) for Rs. 185 Million, FAPC (OS)(Hypo) for Rs. 70 Million, Cash Finance (Pledge) for Rs. 15 Million, Running Finance (Hypo) for Rs. 10 Million and FAPC (OS) (Hypo) for Rs. 40 Million. As per claim in the plaint, the said facilities were lastly availed, on 28.04.2014 and defendants No. 2 to 8 are the directors and shareholders of Defendant No. 1, who stood as guarantors for above said facilities. It is claimed that on 21.04.2015, the defendants 1 to 8 filed application for renewal of facility but the plaintiff bank instead of allowing fresh finance facility, extended the finance facility till 30.06.2015, which was further extended vide letter dated 09.06.2015 till 31.08.2015. The claim of the plaintiff bank is that defendants No. 1 to 8 failed to fulfill their financial obligations regarding repayment of finance facilities, hence this suit has been filed. In response to the notice, defendants No. 11 to 8 (defendants) entered appearance and filed their application for leave to defend the suit (PLA 13/2016).

2. The learned counsel for defendants No. 1 to 8 while arguing the PLA, submits that statements of account filed alongwith plaint, does not fulfill the mandatory requirement as contemplated under Section 9(2) of the Ordinance. He submits that neither these statements of account are certified in any manner provided under Bankers’ Books Evidence Act, 1891 (Act of 1891) nor the same are signed by the Bank Manager. The learned counsel placed reliance on National Bank of Pakistan through Manager vs. Messrs Mujahid Nawaz Cotton Ginners through Partners and 6 others (2007 CLD 678) and Askari Bank Limited vs. DCD Services Limited and 3 others (2018 CLD 799) to argue that such defect in the statement of account will entitle the defendants for grant of unconditional leave.

3. Learned counsel for the plaintiff bank on the other hand submits that the statements of account are electronic computer generated statements, therefore, same are admissible in evidence. Further submits that said statements of account are duly signed by the authorized officer who is also attorney of the plaintiff bank. He further submits that plaintiff only seeking decree to the extent of defendants No. 1 to 8 and no decree is claimed against the proforma defendants No. 9 to 16.

4. Arguments heard. During course of arguments on PLA, learned counsel for the defendants did not deny the availing of facility or execution of the charged documents. However, the only argument of learned counsel for defendants is that statements of account being not certified and signed by authorized persons, the defendants are entitled for grant of leave. In this context, the perusal of statements of account attached with the plaint shows that same are electronic computer generated statements. Learned Divisional Bench of this Court in United Bank Limited vs. Riaz Hussain and others (2018 CLD 1476) held that since the promulgation of the Electronic Transaction Ordinance, 2002 (Ordinance of 2002), such statements are admissible in evidence as per Section 4 of the Ordinance of 2002 Relevant observations in said judgment are reproduced hereunder:

“In modern banking mostly the statements of account are generated through information system and such statement generated through the information system being electronic document does not require signature. Since the promulgation of the Electronic Transaction Ordinance, 2002, all electrical modes are recognized as evidence as per Section 4 of the said Ordinance.”

The learned Division Bench of this Court in afore-noted judgment also relied upon Mst. Tasleem Fatima and others vs. Bank of Punjab and others (2017 CLD 552), where it is held as under:

“If statement of accounts did not bear signatures, the same would still have been admissible in evidence as it was electronically computer generated statement and there was no need to put a certificate on such accounts as prescribed by Section 2(8) of the Bankers’ Books Evidence Act, 1891 and Section 3 of Electronic Transactions Ordinance, 2002.”

6. The next argument of learned counsel for the defendants that the statements of account are not signed by the authorized person has also no basis. The perusal of record shows that statements of accounts are signed by Naveed Ahmad, Incharge Foreign Trade of plaintiff bank, who is also the attorney of the bank for filing of the instant suit. This Court in The Bank of Punjab through Branch/Chief Manager vs. Messrs Khan Unique Developers Pvt. Ltd. through Chief Executive Officer and 9 others (2016 CLD 29) held that computer generated accounts can be signed by any officer of the bank. The relevant observation is reproduced hereunder:

“In the present case, however, what the plaintiff bank has appended with the plaint are computer generated accounts. These accounts being the computer generated accounts/ledgers of the plaintiff bank, there was no need to put a certificate .on the foot of such accounts as prescribed by Section 2(8) of the Act and any officer of the Bank could sign the said accounts. As the original accounts have been appended with the suit, which constitute primary evidence, there is no need to file a certified copy thereof which should in turn comply with the requirements of Section 2(8) of the Act. It may again be emphasized that the requirement of putting a certificate at the foot of the statement, by virtue of Section 2(8) of the Act, is in regard to a copy of the accounts for any entry contained therein and not for the original accounts. This issue has been touched upon in a judgment reported as Habib Metropolitan Bank Limited vs. Mian Abdul Jabbar Gihlin 2013 CLD 88.”

(emphasis supplied).

7. The case law relied upon by the learned counsel for the defendants cannot be given preference over the law settled by Division Bench of this Court, specifically regarding effect of Ordinance 2002 on statement of Accounts. Though the learned counsel for the defendants did not dispute the suit amount, however, the perusal of the record and statements of account show that admittedly facilities were lastly extended till 31.08.2015, therefore, the plaintiff bank could claim mark up only till the expiry of the contract period i.e. till 31.08.2015. In the circumstances, the excess mark up amount of Rs. 84,40,423/- after 31.08.2015, is not recoverable.

8. In view of above discussion, the Defendants No. 1 to 8 have not been able to raise any substantial question of law or fact requiring recording of evidence for its resolution. Consequently the PLA is dismissed and suit of the plaintiff bank is decreed in favour of the plaintiff bank against Defendants No. 1 to 8 jointly and severally for amount of Rs. 23,00,87,702.63 together with costs and cost of fund as contemplated by Section 3 of the Ordinance.

(Y.A.) Appeal allowed

PLJ 2021 Lahore 446

Present:Jawad Hassan, J.

SHAHID FAROOQ--Petitioner

versus

ADDITIONAL DISTRICT JUDGE SHAH KOT, DISTRICT NANKANA SAHIB and 2 others--Respondents

W.P. No. 3732 of 2017, decided on 20.9.2017.

Constitution of Pakistan, 1973--

----Art. 199--Suit for maintenance and recovery of dowry articles--Partially decreed--Appeals--Dismissed--Producing of original divorce deed--Entitlement for recovery of maintenance allowance to extent of iddat period and recovery of dowry articles except articles mentioned at serial No. 47, 48, 49 of list or alternate price--Concurrent findings--Challenge to--In constitution petition, no convincing arguments were advanced by counsel for Petitioner to convince this Court that both Courts below have committed any illegality while fixing maintenance: allowance according to financial status of petitioners and assessing price of dowry articles--Both Courts below have passed impugned judgments and decrees after fully appreciating evidence on record, which this Court has also examined--When a factual controversy had been settled by two Courts below unless and until there were compelling reasons shown for mis-reading and non’ reading of evidence in order passed by Courts below, was without jurisdiction or there was a visible irregularity while deciding same, High Court might interfere--No illegality or irregularity had been pointed out in concurrent findings of fact recorded by two Courts below and impugned judgments and decrees do not suffer from any legal discrepancy or infirmity--Petition was dismissed. [Pp. 448 & 449] A, B & C

PLD 1981 SC 522, 2003 YLR 3097, 2003 CLC 400, 2003 CLC 702, 2009 SCMR 1243 ref.

Mr. Zabi Ullah Nagra, Advocate for Petitioner.

Ch. Ishtiaq Ali, Advocate for Respondents.

Date of hearing: 20.9.2017.

Judgment

Through this Constitutional Petition, the Petitioner has called in question judgments and decrees dated 5.5.2016 and 21.10.2016 passed by Respondents No. 1 and 2.

1. Facts briefly for the disposal of this Constitutional Petition are that as a consequence of suit for maintenance and recovery of dowry articles judgment decree dated 05.05.2016 was passed by learned Judge Family Court, Shah Kot, whereby Respondent No. 3, was not held entitled to recover the past maintenance allowance from the Petitioner but was entitled to recover Rs. 20, 000/- on account of maintenance for the period of her Iddat. The Respondent No. 3 was also held entitled to recover the dowry articles except the articles mentioned at Serial No. 46, 47, 48 and 49 from the Petitioner as per list or in alternate its price Rs. 3, 50, 000/-. The said judgment and decree was assailed by both the parties by filing their respective appeals before the learned Additional District Judge, Shah Kot, which were dismissed vide judgment and decree dated 21.10.2016. Hence this petition.

2. Learned counsel for the Petitioner has argued that impugned judgments and decrees are against law and facts of the case. He argued that controversy between the parties was with regard to the dowry articles. It is claim of the Respondent No. 3 that the dowry articles are still with the Petitioners, whereas the Petitioner had denied this fact and stated that the dowry articles were fetched by the Respondent No. 3. Over the said divergent pleadings, the issue was required to be framed but the Respondent No. 2 had committed serious illegality by not framing the issue. He further argued that the Respondent No. 3 has badly failed to prove the dowry articles left in the custody of the Petitioner, but both the Courts below have passed the impugned judgments and decrees which are based on surmises and conjectures, therefore, are not sustainable in the eye of law and liable to be set aside.

3. On the other hand counsel for the Respondent No. 3 has supported the impugned judgments and decrees, as view taken by both the Courts below is concurrent therefore, no exception can be taken to it in constitutional jurisdiction. Lastly, he prayed for dismissal of the writ petition.

4. Arguments heard and record perused.

5. It is evident from perusal of record that the Petitioner is contesting his case over the dowry articles. The Respondent No. 3 in order to prove her case appeared herself as PW-1 and filed her affidavit as Ex.P-1 and produced list of dowry articles Exh.P-1. The Respondent No. 3 got recorded statements of Tariq Mahmood and Maqsood Ahmad (PW-2) and (PW-3) and they tendered their affidavits as Exh.P-3 and Exh.P-4 respectively. Whereas Amjad Farooq special attorney of the Petitioners, appeared a DW-1 and tendered his affidavit as Exh.D-1. Morever, the Petitioner produced Mian Arif Rasool as DW-2, who submitted his affidavit as Exh.D-2. DW-3 was given up. The record shows that an original divorce deed was produced as Exh.D-E, photocopy of divorce deed as Mark-1, copy of application for registration of FIR as Mark-2, copy of report as Mark-3 and closed his evidence. Consequently, the learned Judge Family Court, Shah Kot, after recording issue-wise findings decreed the suit of the Respondent No. 3 vide judgment and decree dated 5.5.2016. The said judgment and decree was up-held by the learned Addl. District Judge, Shah Kot and appeals preferred by both the parties were dismissed vide judgment and decree dated 21.10.2016. At this stage, in the constitution petition, no convincing arguments were advanced by the learned counsel for the Petitioner to convince this Court that both the Courts below have committed any illegality while fixing the maintenance: allowance according to financial status of the petitioners and assessing the price of dowry articles. From the perusal of impugned judgments it reveals that both the Courts below have passed the impugned judgments and decrees after fully appreciating evidence on record, which this Court has also examined.

7. The Hon’ble Superior Courts have held in numerous judgments that the High Court in its extra ordinary jurisdiction can neither substitute findings of facts recorded by Judge Family Court, nor can give its opinion regarding quality or adequacy of the evidence. The assessment and appraisal of evidence is the function of the Family Court, which is vested with exclusive jurisdiction in this regard. Reliance in this regard is placed upon the case of Abdul Rehman Bajwa vs. Sultan and 9 others (PLD 1981 SC 522) Perveen Umar and others vs. Sardar Hussain and others (2003 YLR 3097) Muhammad Ashiq vs. Addl. District Judge Okara (2003 CLC 400) and Aqil Zaman vs. Mst. Aza Bibi and others (2003 CLC 702). Furthermore when a factual controversy had been settled by the two Courts below unless and until there were compelling reasons shown for mis-reading and non reading of evidence in the said order passed by Courts below, was without jurisdiction or there was a visible irregularity while deciding the same, the High Court might interfere. Regarding concurrent findings reliance is also placed upon Waqar Haider Butt vs. Judge, Family Court and others (2009 SCMR 1243), wherein it has been held as under:

“Suit filed by wife and minor children was decreed in their favour and appeal filed by husband was partly allowed by Lower Appellate Court and monthly maintenance of minors was reduced. High Court in exercise of constitutional jurisdiction declined to interfere in judgment and decree passed

by Lower Appellate Court. Validity. Petition under Art. 199 of the. Constitution was not maintainable against concurrent findings of Tribunals below. Both the Courts below had given findings of fact against husband, therefore, High Court was justified to dismiss constitutional petition and the same was in accordance with law laid down by Supreme Court. Normally Supreme Court did not meddle with findings of fact reached at by primary Courts or High Court when it was satisfied that finding of Courts below were reasonable and were not arrived at by disregarding any. of the provisions of law or any accepted principle concerning appreciation of evidence, notwithstanding that a different view might also was possible. The High Court, while exercising constitutional jurisdiction had rightly refused to interfere with findings of fact recorded by Courts of competent jurisdiction. Supreme Court did not find any infirmity or illegality or any misreading of evidence on record by the Courts below. Leave to appeal was refused.”

No illegality or irregularity had been pointed out in the concurrent findings of fact recorded by two Courts below and impugned judgments and decrees do not suffer from any legal discrepancy or infirmity.

1. In view of above, this writ petition being devoid of force is dismissed.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 449[Rawalpindi Bench Rawalpindi]

Present: Shahid Karim, J.

ABDUR RAZZAQ and 2 others--Petitioners

versus

NATIONAL HIGHWAY AUTHORITY, ISLAMABAD through Director and 3 others--Respondents

W.P. No. 664 of 2014, decided on 27.1.2021.

Constitution of Pakistan, 1973--

----Art. 199--Construction of additional flyover--Acquisition of land--Award for acquisition was not made--Appointment of commission--Report of local commission--Determination of compensation--Primary responsibility of respondents Nos. 2, 3 and 4--Direction to--Simple question before this Court is regarding failure on part of respondents to reimburse petitioners with compensation due to them under law for acquisition which took place in year 1997--It is case of NHA that at that time acquisition was made by Punjab Highway Authority and NHA was not empowered under law to do so--Primary responsibility lies with Respondents No. 2, 3 and 4 for undertaking proceedings for determination of compensation and for making of award in favour of petitioners--Parties are not at issue on this basic question and so necessary respondents ought to fulfill their obligations under law expeditiously and with all deliberate speed--Petition allowed. [Pp. 450 & 451] A & B

M/s. Asma Mushtaq, Muhammad Asif Chaudhry and Muhammad Aslam Khan Niazi, Advocates for Petitioners.

Mr. Rizwan Faiz Muhammad, Advocate for Respondent No. 1/NHA.

Mr. Shaukat Rauf Siddiqui, Addl. A.G.

Malik Tahir, Asst. Attorney General.

Date of hearing: 27.1.2021.

Order

The constitutional petitions W.P. No. 664 of 2014, W.P. No. 2596 of 2014 and W.P. No. 2035 of 2019 have common facts and seek the same relief viz. the compensation for the land acquired by the National Highway Authority (NHA) for the construction of Additional Flyover No. 19-A, LIMP, NHA.

2. The learned counsel for the parties have been heard. The counsel for NHA does not take cavil of the primary right of the petitioners to be compensated for the acquisition of land which has already taken place and the project too has been completed. It is common ground between the parties that the award for acquisition has not been made. This Court has on the previous dates of hearing appointed two Commissions for various purposes. However, I do not find it expedient to refer to the reports of the Commission nor it is necessary to do so. The simple question before this Court is regarding the failure on the part of the respondents to reimburse the petitioners with the compensation due to them under the law for acquisition which took place in the year 1997. It is the case of NHA that at that time the acquisition was made by the Punjab Highway Authority and NHA was not empowered under the law to do so. Thus, the entire process of determining the compensation has to be done by District

Collector Rawalpindi. Reference was made to the various proceedings pursuant to the notification issued under Section 4 which is available on the file yet the proceedings did not culminate into the making of an award. Be that as it may, the primary responsibility lies with the Respondents No. 2, 3 and 4 for undertaking proceedings for the determination of compensation and for making of the award in favour of the petitioners. The parties are not at issue on this basic question and so the necessary respondents ought to fulfill their obligations under the law expeditiously and with all deliberate speed.

1. These petitions are allowed. The District Collector, Rawalpindi is directed to complete the determination of compensation due to the petitioners. The matter thereafter shall be referred to the Land Acquisition Collector who shall pass an award in accordance with law. The entire proceedings shall be completed within a period of three months from today. A report shall be filed by the District Collector Rawalpindi along with the award made pursuant to the orders of this Court to the Deputy Registrar (Judicial) of this Court at the end of the three months period.

(Y.A.) Petition allowed

PLJ 2021 Lahore 451

Present: Ch. Muhammad Masood Jahangir, J.

NAZAR MUHAMMAD (deceased) through L.Rs, etc.--Petitioners

versus

M.B.R., etc.--Respondents

W.P. No. 1314 of 2016, decided on 23.9.2020.

Constitution of Pakistan, 1973--

----Art. 199--Confirmation of consolidation scheme--Writ petition--Matter was remanded--Consolidation scheme was reconfirmed by collector consolidation--Appeal--Allowed--Filing of ROR--Dismissed--Ex-parte order--Norms of justice--Right of audience--Direction to--Decision was made without considering wroth, potential and compactness of land/block of wandas modified by Addl. Commissioner--No positive effort was made by any of consolidation authority including BoR to decide lis as per norms of justice despite that earlier this Court remanded matter--A miserable file containing jumble of papers including reports regarding classification of land, aks shajras showing location of site and report/proposals for carving of wandas maintained, but nothing was considered either by Addl. Commissioner or Member, rendering their impugned orders unjust and to make such factual drill work, definitely this Court is not proper forum--Anomaly noted above when faced to Advocate for beneficiaries of impugned orders, though he tried his best to persuade that nothing wrong was found therein, but in reality he failed to show plausible reasoning to maintain those verdicts--It is not expected from a Court/Tribunal/ Authority while performing judicial affairs to pass an order in novel or unprecedented manner, rather is bound to take pain and put labour in consulting record, repelling or capitulating grounds urged or argued by parties or their respective authorized agent/counsel, but sorry to say that no such effort made by two authorities below--Court is left with no other choice except to remand this matter to Board of Revenue with direction to re-decide it exhaustively after consulting original record/file and extending right of audience to all concerned--Petition allowed. [Pp. 453 & 454] A, B, C & D

PLD 1992 SC 333, 1995 SCMR 51, 1995 SCMR 1385 1997 SCMR 410 ref.

Ch. Iqbal Ahmed Khan, Advocate for Petitioners.

Mr. Arshad Jahangir Jhoja, Addl. Advocate General for Respondent No. 1.

Mian Noor Hassan Kamyana, Advocate for Respondents No. 2 to 15.

Date of hearing: 23.9.2020.

Order

The dispute inter se the private parties pertains to consolidation of holdings of village Kamman, tehsil Renala Khurd, district Okara, which is lingering on since 1977 when for the first time the Scheme was confirmed by the Consolidation Officer, however, last time on 12.12.1988, this Court while deciding W.P. No. 5240/1986 remanded the matter with specific direction. Thereafter, though the Scheme was reconfirmed by the Collector (Consolidation) on 29.04.1993, which being agitated by private respondents through appeal was modified by Addl. Commissioner (Consolidation), yet the said appeal was again remanded by the Member, BoR. The Addl. Commissioner, this time,vide ex parte order dated 30.01.2014 allowed appeal of aforenoted respondents, compelling the petitioners to file RoR No. 967/2014 before the learned Member, BoR while asserting grounds “a to m”. The learned Member dismissed it while concurring ex-parte order of his subordinate vide order dated 19.05.2015 in the following manner:

This Court carefully considered the arguments advanced by counsels for the parties and went through record of the case available in the file along with the impugned orders. On examination of the record, it has been revealed that the controversy involved in this case hinges around the confirmation of consolidation scheme. The web of consolidation is woven by hectic efforts and taking pains. However, during the consolidation operation, land of the respondents was scattered into pieces which is not the spirit of law on the subject. The perusal of record indicates that no deficiency whatsoever has taken place in the entitlement of parties as it is not claimed by them. The petitioners failed to produce any convincing documentary evidence to substantiate that in what manners their rights have been prejudiced. Therefore, the order assailed through the instant revision petition dated 30.01.2014 is quite legal and lawful which calls for no interference by this Court. Thus, the revision petition is dismissed in limine being devoid of force and merit.”

2. Having a glance over it, there left no doubt in mind that the decision was made without considering the wroth, potential and compactness of the land/block of the wandas modified by Addl. Commissioner. There is no doubt that BoR is controlling authority and it being the highest forum on revenue/colony/consolidation side in the provinces has been conferred vast powers respecting every order passed by the subordinates working under its command, thus bound to decide the lis in exhaustive manner especially in the cases where jurisdiction of the plenary Court is specifically barred. In the case in hand, no positive effort was made by any of the consolidation authority including the BoR to decide the lis as per norms of justice despite that earlier this Court remanded the matter. A miserable file containing jumble of papers including reports regarding classification of land, aks shajras showing location of site and report/proposals for the carving of wandas maintained, but nothing was considered either by the Addl. Commissioner or learned Member, rendering their impugned orders unjust and to make such factual drill work, definitely this Court is not proper forum.

3. The anomaly noted above when faced to Mian Noor Hasasan Kamyana, Advocate for the beneficiaries of the impugned orders, though he tried his best to persuade that nothing wrong was found

therein, but in reality he failed to show the plausible reasoning to maintain those verdicts. It is not expected from a Court/Tribunal/ Authority while performing judicial affairs to pass an order in novel or unprecedented manner, rather is bound to take pain and put labour in consulting the record, repelling or capitulating the grounds urged or argued by the parties or their respective authorized agent/counsel, but sorry to say that no such effort made by the two authorities below.

4. This Court is left with no other choice except to remand this matter to Board of Revenue with direction to re-decide it exhaustively after consulting original record/file and extending right of audience to all the concerned, obviously while keeping in mind the import as well as object of consolidation laws duly enlightened by the apex Court in judgments reported as Shamir Khan vs. Member, (Cons.) Board of Revenue and 8 others (PLD 1992 SC 333), Muhammad Bashir and 2 others vs. Mst. Roshi and 12 others (1995 SCMR 51), Hasil and another vs. Karam Hussain Shah and others (1995 SCMR 1385) and Khan Muhammad and others vs. Member (Consolidation) Board of Revenue, Punjab and others (1997 SCMR 410). The parties to appear before Senior Member, Board of Revenue on 12.10.2020 for further proceedings. Disposed of.

(Y.A.) Petition allowed

PLJ 2021 Lahore 454[Multan Bench, Multan]

Present: Mujahid Mustaqeem Ahmed, J.

LAUREATE BOYS HIGHER SECONDARY SCHOOL--Petitioner

versus

GOVERNMENT OF PUNJAB and others--Respondents

W.P. No. 8763 of 2019, decided on 10.6.2019.

Private Schools Regulation Ordinance, 2015--

----S. 10--Constitution of Pakistan, 1973, Arts. 10-A & 199--Right of appeal--Principle of natural justice--Opportunity of hearing--Direction to--Petitioner will be satisfied if instant writ petition is sent to Respondent No. 2 to treat it as an appeal of petitioner and ensure its swift decision--Request being genuine is acceded to and writ petition is disposed of with direction to office to send copy of this writ petition alongwith all its annexures, on expenses of petitioner, to Commissioner, who shall treat it as appeal of petitioner and ensure its decision at earliest, preferably within thirty days from date of receipt of order of this Court, in accordance with law/rules/notifications issued by Competent authority, principles of natural justice and equity by passing a speaking order, after affording to petitioner and all concerned an opportunity of far hearing as envisaged under Article 10-A of Constitution of Islamic Republic of Pakistan, 1973--Petition disposed of. [P. 455] A & B

2017 SCMR 118 ref.

Ch. Saleem Akhtar Warriach, Advocate for Petitioner.

Mr. Aahar Saleem Kamlana, A.A.G. on Court’s Call.

Date of hearing: 10.6.2019.

Order

By filing instant writ petition, the petitioner has made following supplication:

“... instant writ petition may kindly be allowed and setting aside the impugned orders dated 14.05.2019 & 29.05.2019 issued by Respondents No. 3 & 4 and impugned enquiry report dated 23.05.2019 submitted by Respondent No. 5 being illegal, against law and facts without lawful authority and jurisdiction) and the registration of petitioner may kindly be restored for the larger interest of justice.”

2. During the course of verbal submissions, learned counsel for petitioner has conceded that under Section 10 of the Private Schools Registration Ordinance, 2015 right of appeal is available before Respondent No. 2 against the orders passed by Respondent No. 5 impugned herein and so far the petitioner has not availed such remedy. Further submits that the petitioner will be satisfied if instant writ petition is sent to the Respondent No. 2 to treat it as an appeal of petitioner and ensure its swift decision.

1. Heard.

2. 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 the 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 petitioner, to the Commissioner, Multan Division, Multan (Respondent No. 2), who shall treat it as appeal of petitioner and ensure its decision at the earliest, preferably within thirty days from the date of receipt of order of this Court, in accordance with law/rules/notifications issued by Competent authority, principles of natural justice and equity by passing a speaking order, after affording the petitioner and all concerned an opportunity of the hearing as envisaged under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.

1. The petitioner is directed to appear before Respondent No. 2 on 18.06.2019. Subject to notice, the operation of impugned orders is suspended in the meanwhile. From the above date and onward Respondent No. 2 shall regulate, extend, modify or vacate the ad-interim injunction strictly in accordance with law after affording right of audience to the petitioner.

(Y.A.) Petition disposed of

PLJ 2021 Lahore 456

Present: Ch. Muhammad Masood Jahangir, J.

Ch. MUHAMMAD RIZWAN--Appellant

versus

MUHAMMAD YOUNAS, etc.--Respondents

F.A.O. No. 595 of 2013, heard on 18.3.2015.

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

----S. 12--Civil Procedure Code, (V of 1908), S. 96, O.XXXI Rr. 1, 2--Suit for specific performance--Application for grant of temporary injunction--Dismissed--Agreements to sell--Defecto guardian--Agreement to sell on behalf of minors--Creation of rights or title--Balance of inconvenience--Rule of lis pendense--Challenge to--It is settled principle of law that a defecto guardian has no authority to enter into an agreement to sell on behalf of minors--It is settled principle of law that mere execution of an agreement to sell neither creates right or title in immoveable property--Appellant has no batter case than respondents, who are title holder of disputed property and for grant of temporary injunction, applicant, has not only to establish that he has a prima facie case, but he has also to show that balance of inconvenience is on his side and that he will suffer irreparable loss unless he is protected during pendency of suit while issuing Injunctive order in his favour--Rule of lis pendens is available to appellant, if disputed property is further alienated by respondents/defendants--In presence of said principle appellant cannot be equipped with relief of temporary injunction and trial Court after assessing required three ingredients has rightly declined grant of stay order--There is much force in contention of counsel for appellant that findings of trial Court to extent that alleged agreement executed by Respondent No. 1 to 4 did not bear characteristic of agreement is not plausible--Counsel for respondent has also conceded said fact--Anyhow findings of trial Court as well as of this Court are of tentative nature and will not influence trial Court at final decision of suit, which will be made independently on basis of evidence likely to be produced by parties during trial--Petition dismissed. [Pp. 458, 459, 461 & 462] A, B, C, D & E

2000 SCMR 961, PLD 1994 SC 674 and 2008 SCMR 352 ref.

Mr. Muhammad Baleeg-uz-Zaman Ch., Advocate for Appellant.

Mr. Zabiullah Nagra, Advocate for Respondents No. 1 to 4.

Mr. Muhammad Ramzan Ch., Advocate for Respondents No. 5 to 10.

Mr. Muhammad Rafique Ch., Advocate for Applicants (in C.M. No. 1 & 2-C of 2015).

Date of hearing: 18.3.2015.

Order

The facts germane for the disposal of instant appeal are that Ch. Muhammad Rizwan present appellant being plaintiff brought a suit for specific performance of two agreements to sell dated 16.10.2011 with the assertion that Respondent No. 1 to 4 being owners of property measuring 27-Kanal and 18-marlas, whereas, Respondents No. 5 to 1.0 being owners of 8-Kanal of disputed property fully mentioned in the today of the plaint had agreed to sell the same to him and after receiving a sum of Rs. 10,00,000/- they executed two different above referred sale agreements. It was further settled that plaintiff/appellant would pay Rs. 32,00,000/- to the Respondents No. 1 to 4 and Rs. 8,00,000/- to Respondent No. 5 to 10 till 15.11.2011. According to the appellant, he was ever ready to pay the balance amount, but the respondents refused to receive the balance amount and get transferred the suit property in favour of the plaintiff/ appellant, who was constrained to file the suit in hand. Along with the said suit appellant/plaintiff also filed an application for grant of temporary injunction with the prayer that respondents be permanently restrained from selling, alienating, transferring or encumbering the land in dispute and from changing its nature and character in any manner whatsoever till the final disposal of the titled suit. The said suit as well as application was resisted by the respondents/defendants by filing written statement and written reply. The learned trial Court vide impugned order dated 12.11.2013 dismissed the said application for grant of injunctive order. Being aggrieved the instant appeal has been filed.

1. During the pendency of this appeal CM No. 1-C/2015 for impleading Parveen as respondent under order I rule 10 CPC was filed, but on reconsideration learned counsel for the applicant has opted not to press the same as the applicant has already filed similar application before the trial Court. As such, CM No. 1-C/2015 is dismissed accordingly whereas CM No. 2-C/2015 has become redundant.

2. Learned counsel for the appellant has argued that respondents received the earnest money, but they did not produce the Fard Malqiat and get demarcated the land, therefore, remaining amount could not be paid to the respondents and the appellant is ever ready to perform his part, if the respondents fulfill the condition mentioned in the agreement; that the learned trial Court without considering the said contention of the petitioner dismissed the application filed by the petitioner; that three essential ingredients necessary for the grant of interim order under Order XXXIX Rule 1 & 2 of CPC also tilt in favour of appellant, but learned trial Court without considering the said pre-requisites passed the impugned order; that the execution of the disputed agreements as well as payment of earnest money was admitted by the respondents and the appellant has prima face arguable case, but this fact has also not been considered by the learned trial Court. He has lastly prayed for the acceptance of the instant appeal, setting aside of the impugned order and that application for grant of temporary injunction filed by the appellant before the learned trial Court be accepted.

3. Conversely, learned counsel for the respondents have supported the impugned order.

4. Arguments heard. Record perused.

5. It is an admitted fact that appellant filed a suit for specific performance of agreement to sell on the basis of two agreements to sell, one was allegedly executed by Respondents No. 1 to 4, whereas the other was claimed to have been executed oh behalf of Respondents No. 5 to 10 by Rahila Bibi Respondent No. 5 on her behalf as well as her miner sons and daughters Respondents No. 7 to 10. No doubt, Rahila Bibi being mother is the defecto guardian of her minor children, but it is settled principle of law that a defecto guardian has no authority to enter into an agreement to sell on behalf of minors. This Court has already thrashed this point in the judgment dated 28.4.2014 passed in RSA No. 221/2010 to the following effect:

“The appellant/plaintiff himself admitted in the plaint that at the time of execution of the disputed agreement to sell, defendants No. 2 to 4 and 6 were minors and Defendant No. 1, the mother of the said minor defendants was not their appointed guardian at the time of execution thereof.

1. The agreement to sell is defined in Black’S Law Dictionary, Fifth Edition which reads as under:

“Agreement of sale; agreement to sell.--An agreement of sale may imply not merely an obligation to sell, but any obligation on the part of the other party to purchase, while an agreement to sell is simply an obligation on the part of the vendor or promisor to complete his promise of sale. Treat v. While, 181 U.S. 264, 21 S.Ct. 611, 45 L.Ed. 853. It is a contract to be performed in future, and, if fulfilled, results in a sale; it is preliminary to sale and is not the sale.”

The said definition has further been elaborated by the august Supreme Court of Pakistan in a case reported as “Hafiz Tassadiq Hussdin vs. Muhammad Din through Legal Heirs and others (PLD 2011 Supreme Court 241) and relevant para-5 is reproduced hereunder for ready reference:

“The noted meaning is also fortified by the provisions of Section 54 of the Transfer of Property Act, 1882 which definies the sale of immovable property, prescribes the mode and mechanism how it is made; and by virtue of its clear language distinguish it from a contract/agreement of sale, when it is ordained that: “A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties”. Furthermore, in the above context, a clear distinction and contract is drawn in the same provision, wherein it is provided that a contract for sale itself shall neither create any interest in or a charge on such property, Thus, the former transaction (if not a conditional sale) is the conclusive transfer of an absolute title and ownership of the property unto the vendee in presentee, while the later is meant for accomplishing the object of sale in futurity and for all intents and purposes it pertains to the future obligations of the parties thereto, resultantly there is no room for doubt that a sale agreement/agreement to sell is duly covered and is hereby so declared to fall within the pale of said Article.

1. It is an admitted fact that the disputed property had been agreed to sell by Defendant No. 1, i.e. mother of the other defendants, who were less than 18 years of age and could not validly enter into sale contract on their behalf, which was void ab initio having been contracted incapacity of vendors, thus, had no legal existence. No rights or liabilities would arise in favour of vendee from such void transaction, which could neither be enforced nor set up as a valid defence plea to claim thereunder a right or title. Invalidity of such transaction arose from a legal incapacity, which was, thus, incurable. Such sale was void and not voidable. Sale of minors’s property by their mother as a defecto guardian was not sale in the eyes of law. Such sale would be invalid, unless the guardian obtained permission from the Court of law to sell but the said property after her appointment as a guardian. The Court is not even bound to grant leave to dispose of property of minors to an appointed guardian unless and until it is expressly proved to before benefit or welfare of minor. Section 29 of the Guardians and Wards Act, 1980 reads as under:

2. Limitation of Powers of guardian of property appointed or declared by the Court. Where a person other than a Collector, or other than a guardian appointed by will or other instrument, has . been appointed or declared by the Court to be guardian of the property of a ward, he shall not, without the previous permission of the Court:

(a) mortgage, or charge or transfer by sale, gift, exchange or otherwise any part of the Immovable property of his ward; or

(b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor.

After perusal of the aforesaid provisions, there is left no doubt that the agreement to sell (Exh.Pl) alleged to have been executed by Defendant No. 1 in favour of the appellant on behalf of the minor children without prior permission of the Court is void and the appellant could not seek performance of such agreement with the aid of Court by filing Civil suit, In arriving at this view, I am also fortified by the dictum laid down by the august Supreme Court of Pakistan in the judgment reported as “2000 SCMR 961, PLD 1994 SC 674 and 2008 SCMR 352.

1. In the present case, it is even admitted by the learned counsel for the appellant/plaintiff during the course of arguments that Defendant No. 1 was not an appointed guardian of the minor defendants from the competent. Court of law. As such the said defendants cannot be burdened with liability of void contract and the learned lower appellate Court has validly refused relief to the vendee from his contracting minor party.”

Learned counsel for the appellant, during the course of arguments has conceded that one of the alleged agreement is defective to this extent. The appellant/plaintiff by filing a single suit regarding above referred two agreements has also damaged his case on account of mis-joinder of causes of action. It is settled principle of law that mere execution of an agreement to sell neither creates right or title in the immoveable property. The appellant has yet to prove the valid execution of the disputed agreements by producing cogent and convincing evidence. At present stage, the appellant has no batter case than the respondents, who are title holders of the disputed property and for grant of temporary injunction, the applicant, has not only to establish that he has a prima facie case, but he has also to show that the balance of inconvenience is on his side and that he will suffer irreparable loss unless he is protected during the pendency of the suit while issuing Injunctive order in his favour. If the appellant is not equipped with temporary injunction then at the most he could suffer a loss in terms of coins and such a loss cannot be termed as irreparable loss. The appellant has only prayed in his application for grant of temporary injunction to the extent that respondents/defendants be restrained from alienating the disputed property. Rule of lis pendens is available to the appellant, if the disputed property is further alienated by the respondents/defendants. In the presence of said principle the appellant cannot be equipped with the relief of temporary injunction and the learned trial Court after assessing the required three ingredients has rightly declined the grant of stay order. However, there is much force in the contention of the learned counsel for the appellant that the findings of the learned trial Court to the extent that the alleged agreement executed by Respondent No. 1 to 4 did not bear the characteristic of agreement is not plausible. The learned counsel

for the respondent has also conceded the said fact. Anyhow the findings of the learned trial Court as well as of this Court are of tentative nature and will not influence the learned trial Court at the final decision of the suit, which will be made independently on the basis of the evidence likely to be produced by the parties during the trial.

1. Sequel to the above discussion, the instant appeal being devoid of any merit and force is dismissed.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 462

Present: Ch. Muhammad Iqbal, J.

SAEED AHMAD--Petitioner

versus

ADDITIONAL DISTRICT JUDGE etc.--Respondents

W.P. No. 54948 of 2017, heard on 25.11.2020.

Punjab Rented Premises Act, 2009 (VII of 2009)--

----S. 15--Constitution of Pakistan, 1973, Art. 199--Ejectment petition--Accepted to extent of vacation of demised premises--Appeals--Dismissed--Agreement to sell--Deniel of tenancy by petitioner and also filed a suit for specific performance--Decreed to extent of recovery of earnest money--Civil revision--Allowed--Challenge to--Concurrent findings--Petitioner admitted that he was tenant of Respondent No. 5, who sold suit property to Respondents No. 3 & 4, as such, relationship of landlord and tenant exists, hence Special Judge (Rent) rightly passed order for eviction of petitioner from demised premised--Claim of Respondents No. 3 & 4 regarding recovery of arrears of rent from petitioner w.e.f March, 2010 is concerned, Respondent No. 5, admitted execution of agreement to sell in favour of petitioner--Petitioner filed suit for specific performance of said agreement dated 29.12.2009 on 04.03.2011 and thereafter, Respondents No. 3 & 4 came up with plea of recovery of rent/arrears etc.--Courts below rightly discarded claim of Respondents No. 3 & 4 for recovery of rent--Counsel for parties have not been able to point out any illegality or material irregularity in orders passed by Courts below and have also not identified any jurisdictional defect--Concurrent findings of facts are against parties which are not called for any interference by this Court in absence of any illegality or any other error of jurisdiction--Petition dismissed. [Pp. 464] A, B & C

200& MLD 1710 ref.

Ch. Irshad Ullah Chatha, Advocate for Petitioner.

Messrs M. Mushtaq Ahmad Dhoon and Naila Mushtaq Dhoon,Advocates, for Respondent No. 3 & 4.

Date of hearing: 25.11.2020.

Judgment

Through this single judgment, I intend to decide the titled Writ Petition No. 54948/2017 as well as Writ Petition No. 76768/2017, as both these petitions have arisen out of the same judgment.

1. Through these writ petitions, the petitioners have challenged the order dated 03.05.2016, passed by the learned Special Judge (Rent), Sialkot whereby the ejectment petition filed by the Respondents No. 3 & 4 was partly allowed.

2. Brief facts of the case are that the Respondents No. 3 & applicants filed an ejectment petition under the Punjab Rented Premises Act, 2009 against the petitioner in respect of the shop, fully described in paragraph No. 3 of the ejectment petition, on the ground that the Respondents No. 3 & 4 had purchased the suit property through a registered sale deed No. 676 dated 24.02.2010. They further alleged that the petitioner has made default in the payment of rent, as such, he may be evicted from the demised premises. The petitioner contested the said ejectment petition on the ground that he is not a tenant of the Respondents No. 3 & 4 as he has purchased the suit property through an agreement to sell from father of the Respondent No. 3. The learned Special Judge (Rent), Sialkot framed issues, recorded evidence of the parties and finally partly accepted the ejectment petition to the extent of vacation of demised premises and dismissed the rest of the claim of the respondents vide order dated 03.05.2016. Both the parties filed appeals which were dismissed by the learned appellate Court vide judgment dated 19.06.2017. Hence, both these writ petitions.

3. 1 have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

4. Admittedly, the petitioner entered into an agreement to sell with Respondent No. 5, Muhammad Siddique, owner of the demised premised but Respondent No. 5 transferred the demised premises in favour of Respondents No. 3 & 4. The petitioner also filed a suit for specific performance of agreement to sell which was decreed to the extent of recovery of earnest money alongwith compensation from

Respondent No. 5, Muhammad Siddique which matter has been decided by this Court vide judgment of even date passed in Civil Revision No. 70913/2017). The petitioner admitted that he was tenant of Muhammad Siddique, Respondent No. 5, who sold the suit property to Respondents No. 3 & 4, as such, the relationship of landlord and tenant exists, hence the learned Special Judge (Rent) rightly passed order for eviction of the petitioner from the demised premised.

6. As regard the claim of Respondents No. 3 & 4 regarding recovery of arrears of rent from the petitioner w.e.f March, 2010 is concerned, the Respondent No. 5, Muhammad Siddique, admitted execution of agreement to sell dated 29.12.2009 in favour of the petitioner. The petitioner filed suit for specific performance of the said agreement dated 29.12.2009 on 04.03.2011 and thereafter, the Respondents No. 3 & 4 came up with the plea of recovery of rent/ arrears etc. Keeping in view the aforesaid facts, the learned Courts below rightly discarded the claim of the Respondents No. 3 & 4 for recovery of rent.

7. Learned counsel for the parties have not been able to point out any illegality or material irregularity in the impugned orders passed by the learned Courts below and have also not identified any jurisdictional defect. The concurrent findings of facts are against the parties which are not called for any interference by this Court in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case of ZulfiqarAli v. Judge, Family Court and 7 others (2007 MLD 1710).

1. Resultantly, both these writ petitions are hereby dismissed being devoid of any force.

(Y.A.) Petitions dismissed

PLJ 2021 Lahore 464

Present: Malik Shahzad Ahmad Khan, J.

MUHAMMAD IDREES--Petitioner

versus

EX-OFFICIO JUSTICE OF PEACE, GUJRANWALA etc.--Respondents

W.P. No. 16823 of 2017, heard on 16.11.2017.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 22-A & 22-B--Application for registration of case--Accepted--Purchase of wheat and rice--Submission of report by SHO--Receiving of amount by respondent--Non-disclosing of fact in petition for registration of case by respondent--Rendation of accounts--Challenge to--Respondent No. 3 is present in this Court alongwith his counsel--He has admitted before Court that he has already received an amount of Rs. 2,61,000/- from petitioner--His said admission is in conflict with story narrated by him in his petition under Section 22-A/B, Cr.P.C. because in said petition he did not disclose that he has already received amount from petitioner--It is a case if rendition of accounts or above mentioned respondent can file a suit for recovery of outstanding amount against above mentioned cheque which is a proper remedy for above mentioned respondent--Petition allowed.

[P. 466] A

Mr. Zabi Ullah Nagra, Advocate for Petitioner.

Ch. Iftikhar Iqbal Ahmad, AAG for State.

Mr. Shahid Iqbal Qureshi, Advocate for Respondent No. 3.

Date of hearing. 16.11.2017.

Judgment

This petition has been filed against the order dated 18.4.2017 passed by learned ex-officio Justice of Peace, Gujranwala, whereby, petition under Section 22-A/B, Cr.P.C. filed by Muhammad Afzal (Respondent No. 3) was allowed with the direction to the concerned SHO to record the statement of Respondent No. 3 under Section 154, Cr.P.C. and proceed in the matter in accordance with the law.

1. As per brief facts of the 0resent case, Muhammad Afzal (Respondent No. 3) filed a petition under Section 22-A/B, Cr.P.C. with the allegation that he sold rice and wheat to the petitioner of the value of Rs. 6,15,000/- and for payment of the said amount the petitioner handed over a cheque to him which was dishonored on its presentation by the concerned bank, therefore, an order for registration of FIR may be passed against the petitioner. The said petition filed by respondent No. 3 has been accepted vide the above mentioned impugned order passed by the learned ex-officio Justice of Peace, Gujranwala; hence the present petition before this Court.

2. It is contended by learned counsel for the petitioner that Respondent No. 3 alongwith his learned counsel appeared before the learned ex-officio Justice of Peace, Gujranwala and admitted that he has received an amount of Rs. 2,61,000/- from the petitioner and in the light of said admission it was a case of rendition of accounts and no offence under Section 489-F, PPC is made out in this case; that even the local police has reported in its report before the learned ex-officio Justice of Peace, Gujranwala that Respondent No. 3 has already received an amount of Rs. 2,61,000/- from the petitioner and only an amount of Rs. 3,54,000/- was outstanding against the petitioner and as such it is a case of civil nature regarding rendition of accounts, therefore, the impugned order is not sustainable in the eye of law.

3. On the other hand this petition has been opposed by learned counsel for Respondent No. 3 on the grounds that the cheque issued by the petitioner of the value of Rs. 6,51,000/- was dishonored on its presentation by the concerned bank, therefore, ingredients of offence under Section 489-F, PPC were fully attracted in this case and as such the impugned order was rightly passed against the petitioner by the learned ex-officio Justice of Peace, Gujranwala; that the petitioner has raised disputed questions of facts in this petition which cannot be resolved in constitutional jurisdiction; that the signatures on the disputed cheque have been admitted by the petitioner; that there is no substance in this petition, therefore, the same may be dismissed.

4. Arguments heard and record perused.

6. It is claim of Respondent No. 3 that the petitioner purchased rice and wheat from him of the value of Rs. 6,15,000/- and for the payment of said sale consideration the petitioner handed over the cheque in question of the above mentioned value to him which was dishonored on its presentation by the concerned bank. On the other hand, it is claim of the petitioner that Respondent No. 3 has already received the disputed amount from him and he has mala fidely moved application under Section 22-A/B, Cr.P.C. for registration of case against him and got the impugned order issued. I have noted that the SHO of police station Qila Dedar Singh, District Gujranwala in its report submitted before the learned ex-officio Justice of Peace, Gujranwala has reported that Muhammad Afzal (Respondent No. 3) has admitted that he has already received an amount of Rs. 2,61,000/- from the petitioner against the above mentioned cheque and only an amount of Rs. 3,54,000/- is outstanding against the petitioner. Muhammad Afzal (Respondent No. 3) is present in this Court alongwith his learned counsel. He has admitted before the Court that he has already received an amount of Rs. 2,61,000/- from the petitioner. His said admission is in conflict with the story narrated by him in his petition under Section 22-A/B, Cr.P.C. because in the said petition he did not disclose that he has already received the above mentioned amount from the petitioner. In the light of above, it is a case of rendition of accounts or the above mentioned respondent can file a suit under Order XXXVII, C.P.C, for the recovery of outstanding amount against the above mentioned cheque which is a proper remedy for the above mentioned respondent. Under the circumstances, the

learned ex-officio Justice of Peace, Gujranwala was not obliged to pass the impugned order against the petitioner. Resultantly, this petition is allowed and the impugned order dated 18.04.2017 passed by the learned ex-officio Justice of Peace, Gujranwala is hereby set aside.

(Y.A.) Petition allowed

PLJ 2021 Lahore 467

Present: Ch. Muhammad Iqbal, J.

SAEED AHMAD--Petitioner

versus

BILAL ZAIB etc.--Respondents

C.R. No. 70913 of 2017, decided on 25.11.2020.

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

----S. 115--Specific Relief Act, (I of 1877), Ss. 9, 12 & 42--Suit for possession through specific performance filed by petitioner was partly decreed to recovered earnest money alongwith compensation--While suit for declaration alongwith cancellation of agreement was dismissed--Consolidated judgment--Appeals--Dismissed--Agreement to sell--Earnest money was paid--Validiation of agreement--Alternate relief--Discretionary powers of Court--Principle of equity--Non-identification of jurisdictional defect--Concurrent findings--Challenge to--When petitioner himself admitted that respondent transferred suit property in favour of Respondents No. 2 & 3 through registered sale deed, then there is no need to further discuss merits of case--It is settled law that admitted facts need not to be proved--Courts below rightly granted alternate relief in favour of petitioner for alongwith compensation from Respondent No. 1 and dismissed rest of claim of petitioner and also rightly dismissed suit of Respondents No. 2 & 3 for cancellation of said agreement to sell--Grant of decree for specific performance comes within discretionary power of Court which can refuse to grant relief on principle of equities even suitor has proved case--Counsel for parties have not been able to point out any illegality or material irregularity, mis-reading and non-reading of evidence in impugned judgments & decrees passed by Courts below and have also not identified any jurisdictional defect--concurrent findings of facts are against parties which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction--Revision petition dismissed.

[Pp. 470 & 471] A, B, C & D

1991 SCMR 2300, PLD 2004 SC 682, 2019 SCMR 524 and 2014 SCMR 1469 ref.

Ch. Irshad Ullah Chatha, Advocate for Petitioner.

Messrs M. Mushtaq Ahmed Dhoon and Naila Mushtaq Ahmed Dhoon, Advocates for Respondents.

Date of hearing: 25.11.2020.

Judgment

Through this single judgment, I intend to decide instant Civil Revision No. 70913/2017 as well as Civil Revision No. 125321/7017 and Civil Revision No. 131702/2018, as all these cases have arisen out of the same judgment & decree.

1. Through this revision petition, the petitioner has challenged the consolidated judgment & decree dated 03.05.2016, passed by the learned Civil Judge, Sialkot whereby the suit for possession of shop through specific performance of contract and declaration for cancellation of Document No. 676 dated 24.02.2010 alongwith perpetual injunction filed by the petitioner was partly decreed and the suit for declaration alongwith cancellation of agreement to sell dated 29.12.2009 filed by the Respondents No. 1 & 2 was dismissed. The petitioner has also assailed the consolidated judgment & decree dated 19.6.2017, passed by the learned Additional District Judge, Sialkot who dismissed the appeals filed by the petitioner as well as the respondents.

2. Brief facts of the case are that the petitioner, Saeed Ullah, (hereinafter referred as petitioner/plaintiff) entered into an agreement to sell on 29.12.2009 with Muhammad Siddique, Respondent No. 3 with regard to shop measuring 33 Sq. Ft. situated in Budhi Bazar, Sialkot, fully described in paragraph No. 1 of the plaint against consideration of Rs. 23,00,000/- out of which the petitioner/plaintiff paid Rs. 15,00,000/- as earnest, money to him in the presence of the witnesses. Before this, through a rent agreement dated 1.7.2009, Respondent No. 3/defendant, Muhammad Siddique, had received Rs. 300,000/- as security/advance. It was also settled between the petitioner/plaintiff and Respondent No. 3/defendant that the remaining consideration of Rs. 500,000/- would be paid at the time of execution of sale deed. The Respondent No. 3/defendant, Muhammad Siddique, in violation of the agreement made with the petitioner/ plaintiff, executed a sale deed bearing document No. 676 dated 24.02.2010 in favour of Respondents No. 2 & 3/defendants. On disclosure of the above transaction, the petitioner/plaintiff filed suit for specific performance and cancellation of sale deed No. 676 dated 24.2.2010 being illegal.

Muhammad Siddique/Respondents No. 3/defendant filed written statement admitting the agreement in favour of the petitioner as well as the execution of the sale-deed in favour of the Defendants No. 2 & 3, The Respondents No. 2 & 3/Defendants No. 2 & 3 filed the contesting written statement with the assertion that they had purchased the suit property against total paid consideration of Rs. 25,00,000/- and the alleged agreement to sell in favour of the petitioner/plaintiff is an ante-dated document prepared with inter se collusiveness of the petitioner/plaintiff and Respondent No. 3/ defendant. Beside above the Respondents No. 2 & 3/defendants, Bilal Zaib and Mst. Saima, also filed a suit for declaration for cancellation of agreement to sell dated 29.12.2009 allegedly executed by Respondent No. 3/Defendant No. 1 in favour of petitioner/plaintiff contending therein that the said agreement is a forged and ante-dated document which has been prepared by the petitioner/plaintiff with inter se collusiveness of respondent/Defendant No. 1.

The learned trial Court consolidated both the aforesaid suits, framed consolidated issues, recorded pro an contra evidence of the parties and videjudgment & decree dated 03.05.2016, partly decreed the suit of the petitioner/plaintiff granting him alternate relief .to recover the earnest money of Rs, 18, 00, 000/- alongwith compensation of Rs. 500, 000/- from the Respondent No. 3 and rest of the claim of the petitioner/plaintiff was denied whereas the suit of the Respondents/Defendants No. 2 & 3 was dismissed. Both the patties challenged the above judgment and decree in separate appeals which were dismissed by the learned appellate Court vide consolidated judgment & decree dated 19.06.2017. Hence, these civil revisions.

1. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

2. The real controversy between the parties is encompassed in Issues No. 1 to 3, which are reproduced as under:

3. Whether plaintiff namely Saeed Ahmed entered an agreement to sell No. 4804 doted 20.08.1984 and No. 4246 dated 29.12.2009 with the Defendant No. 1 namely Muhammad Sadique with respect to the shop measuring 33 Square Feet against consideration of Rs. 23,00,000/- and paid Rs. 15,00,000/- as earnest money including Rs. 3,00,000/- which was already received as security on 1.7.2009 vide rent deed? If so, its effect? OPP.

4. Whether impugned, registered sale-deed No. 676 dated 24.02.2010 is against, facts and law null, void and ineffective to the rights of plaintiff namely Saeed Ahmed as such the same is liable to be cancelled? OPP.

5. If above issues are proved, whether Saeed Ahmed plaintiff is entitled to the decree as proved for? OPP.

In order to dissipate the onus of the above issues, Saeed Ahmad-plaintiff himself has appeared as P.W.1 and stated that he purchased the suit property from Muhammad Siddique, Respondent No. 3/ Defendant No. 1, through a written agreement dated 29.12.2009 against consideration of Rs. 23,00,000/- out of which Rs. 15,00,000/- were paid as earnest money and Rs. 300,000/- were already pending with respondent/defendant as security/advance amount. This fact, was admitted by Respondent No. 3/defendant, Muhammad Siddique, in his written statement. He further stated that Muhammad Siddique defendant executed sale deed dated 24.2.2010 in favour of Bilal Zaid and his wife Mst. Saima only to cause loss to him. In cross examination, he admitted that Sidique was the owner of the shop; that he plaintiff tenant of Siddique; that it is correct that Siddique transferred the shop in favour of his son and daughter in law. The petitioner/plaintiff produced Mushtaq Ahmad Chisthi (P.W.2) and Tahir (P.W.3) who also repeated the same facts. Muhammad Siddique. the owner of the suit property, was not produced as a witness. When the petitioner/plaintiff himself admitted that Muhammad Siddique, respondent/defendant, transferred suit property in favour of Respondents/Defendants No. 2 & 3 through registered sale deed, then there is no need to further discuss the merits of the case. It is settled law that admitted facts need not to be proved. Reliance is placed on the cases of Mst. Nur Jehan Begum through LRs v. Syed Mujtaba Ali Naqvi (1991 SCMR 2300) and Chief Engineer, Irrigation Department, N.W.F.P. Peshawar and 2 others v. Mazhar Hussain & 2 others (PLD 2004 SC 682). Muhammad Siddique in his written statement admitted that he received the earnest money from the petitioner/plaintiff. Keeping in view the aforesaid facts and circumstances of the case, the learned Courts below rightly granted alternate relief in favour of the petitioner/plaintiff for recovery of earnest money alongwith compensation from respondent/Defendant No. 1 Muhammad Siddique and dismissed the rest of the claim of the petitioner/plaintiff and also rightly dismissed the suit of the Respondents/Defendants No. 2 & 3 for cancellation of the said agreement to sell.

6. 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 principle of equities even the suitor has proved the case, as settled by the Hon’ble Supreme Court of Pakistan in its judgment titled as Sheikh Akhtar Aziz vs. Mst. Shabnam Begum & others (2019 SCMR 524) held 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.”

7. Learned counsel for the parties have not been able to point out any illegality or material irregularity, mis-reading and non-reading of evidence in the impugned judgments & decrees passed by the learned Courts below and have also not identified any jurisdictional defect. The concurrent findings of facts are against the parties which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case titled as Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469).

1. In view of above, all these civil revisions are hereby dismissed being devoid of any merit. No order as to costs.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 471 (DB)

Present: Ch. Muhammad Iqbal and Shahid Waheed, JJ.

MUHAMMAD MOHSIN RAFIQ etc.--Petitioners

versus

M/s. SIDDIQUI & CO.--Respondent

I.C.A. No. 47541 of 2020, decided on 1.10.2020.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3--Constitution of Pakistan, 1973, Art. 204--Seization of imported vehicles--Appeal--Allowed--Direction to releasing of imported vehicles after receipt of duty and taxes--Filling of tax reference--Writ petition during pendency of tax reference--Accepted--Direction to comply with orders of customs appellate tribunal--Review application--Dismissed--Contempt petition--Opportunity to appellants to comply with order--Obligation of appellant--Maintainability--Principle of approbate and reprobate--Challenge to--After having exhausted selected remedy of review, order passed in main writ petition attained status of finality and appellants are placed under obligation to comply with said order--Respondent filed contempt petition in which Single Judge-in-Chamber before initiation of regular proceedings for contempt, allowed a week’s time to appellants to comply with order passed in main writ petition, otherwise, proceedings for contempt shall be initiated--Order passed in main writ petition is s still in field and same has attained status of finality as it has not been got reversed from any competent forum and therefore, its compliance in true letter and spirit has to be effected--Single Judge-in-Chamber on preliminary hearing and before initiation of legal proceedings in contempt provided an opportunity to appellants to comply with order dated 15.07.2020--impugned order is mere a procedural innocuous order in nature which does not inflict any sort of punishment upon appellants--Order which does not inflict any penalty or punishment to contemnor is not appealable, as such, Intra Court Appeal against procedural orders is not maintainable--Counsel for appellants, while advancing arguments, submitted that appellants are ready to comply with order dated 15.07.2020, passed by Single Judge-in-Chamber but due to non-furnishing of required documents by respondent, matter is being delayed--This plea of appellants stand negated on principle of approbate and reprobate as on one hand appellants have filed reference before departmental forum, desisted constitutional petition of respondent, filed Review Application, contempt petition and also have assailed interim procedural order of Single Bench through instant Intra Court Appeal, which shows that they are deliberately avoiding to comply with order and lingering on matter on one pretext or other--Appeal dismissed.

[Pp. 474 & 479] A, B & E

Order passed in contempt--

----Order only awarding punishment and it is said order which can be assailed in Intra Court Appeal, whereas interlocutory interim or procedural orders do not fall within ambit of order passed in contempt of Court. [P. 477] D

Constitution of Pakistan, 1973--

----Article 204--Jurisdiction of Superior Courts--Confers jurisdiction to superior Courts to punish those persons who commit violation or deny compliance of said order of Court. [P. 474] C

Ch. Muhammad Zafar Iqbal, Advocate for Petitioner.

Date of hearing: 1.10.2020.

Order

This Intra Court Appeal under Section 19 of the Contempt of Court Ordinance, 2003 has been filed against the order dated 24.09.2020, passed by the learned Single Judge-in-Chamber in Crl. Org. No. 43053 of 2020, filed by the respondent.

1. Brief facts of the case are that the respondent imported vehicles which were seized by the Model Collectorate of Customs. The matter was referred to Adjudicating Authority who passed order dated 31.01.2019 against the respondent. The respondent challenged the said order in an appeal before the Customs Appellate Tribunal, who directed the appellants vide order dated 20.02.2020 to release the imported vehicles after receipt of duties and taxes etc. Against the above order the Custom Department filed Tax Reference which is still pending without any restraining order.

The respondent filed the Writ Petition No. 30314 of 2020 for the release of his vehicles in light of order passed by Custom Appellate Tribunal dated 20.02.2020. The learned Single Judge-in-Chamber while accepting the writ petition directed the appellants vide order dated 15.07.2020 to comply with the order of the Customs Appellate Tribunal dated 20.02.2020 within a period of two weeks. Against the order dated 15.07.2020, the appellants filed Application No. 34525/2020 which was dismissed by the learned Single Judge-in-Chamber on 30.07.2020. The respondent filed contempt petition Crl.Org.No. 43050/2020 in which the learned Single Judge-in-Chamber vide impugned interim order dated 24.09.2020 afforded an opportunity to the appellants to comply with the Qrder dated 15.07.2020 within one week. Hence, this appeal.

1. We have heard the arguments of learned counsel for the appellants and have gone through the record with his able assistance.

2. The learned Single Judge-in-Chamber, vide order dated 15.07.2020, passed in Writ Petition No. 30314/2020, directed the appellants to comply with the order dated 20.02.2020 of the Customs Appellate Tribunal. The operative part of order dated 15.07.2020 is as under:

“In this view of the matter, this petition is allowed and the respondents are directed to comply with the direction given by the Customs Appellate Tribunal through its order dated 20.02.2020 within the period of two weeks. “

The appellants instead of challenging the above order before the appellate forum, opted to file a Review Application which was also dismissed vide order dated 30.07.2020. The operative part whereof is reproduced as under:

“I am afraid the applicant has not put forward any relevant grounds for review of order dated 15.07.2020. It is apparent that the Customs Appellate Tribunal through its order dated 20.02.2020 allowed the appeal filed by Respondent No. 1 and directed the applicant to release the imported goods of Respondent No. 1 subject to payment of redemption fine and duties and taxes. Despite passage of sufficient time, the applicant has not been able to obtain any stay order against the decision of the Customs Appellate Tribunal’ and as such this Court directed the applicant to comply with the direction given by the Customs Appellate Tribunal. The order passed by this Court on 15.07.2020 does not suffer from any error floating on the surface of the record. This review application is accordingly dismissed.”

After having exhausted the selected remedy of the review, the order dated 15.07.2020, passed in main writ petition attained status of finality and appellants are placed under obligation to comply with the said order. Respondent filed contempt petition Crl. Org. No. 43050/2020 in which learned Single Judge-in-Chamber before initiation of regular proceedings for contempt, allowed a week’s time to the appellants to comply with the order passed in the main writ petition, otherwise, the proceedings for contempt shall be initiated. The said order dated 24.09.2020 is reproduced as under:

“7. It is thus clear that the petitioner is only required to pay the amounts as per the order of the Customs Appellate Tribunal without furnishing any additional documents. The respondents are prima facie in contempt of order of this Court. This Court while showing restraint grants one week’s time to the respondents to ensure the compliance of order of this Court failing which appropriate proceedings shall be set in motion.”

Admittedly order passed in the main writ petition is still in field and same has attained the status of finality as it has not been got reversed from any competent forum and therefore, its compliance in true letter and spirit has to be effected. Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 confers jurisdiction to the superior Courts to punish those persons who commit violation or deny compliance of said order of the Court. Article 204 of the Constitution is reproduced as under:

“204. Contempt of Court.--(1) In this Article, “Court” means the Supreme Court or High Court.

(2) A Court shall have power to punish any person who-

(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court;

(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt;

(c) does anything which tends to prejudice the determination of a matter pending before the Court; or

(d) does any other thing which, by law, constitutes contempt of the Court.

(3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court.”

In furtherance of the above provision of the Constitution, the Contempt of the Court Ordinance, 2003 was promulgated. Section 3 whereof describes the contempt of Court which provision is as under:-

“3. Contempt of Court.--Whoever disobeys or disregards any order, direction or process of a Court, which he is legally bound to obey; or commits a willful breach of a valid undertaking given to a Court; or does anything which is intended to or tends to bring the authority of a Court or the administration of law into disrespect of disrepute, or to interfere with or obstruct or interrupt or prejudice the process of law or the due course of any judicial proceedings, or to lower the authority of a Court or scandalize a Judge in relation to his office, or to disturb the order or decorum of a Court, is said to commit “contempt of Court”. The contempt is of three types, namely, the “civil contempt”, “criminal contempt” and ‘judicial contempt”.

Every superior Court has the jurisdiction under Section 5 of the said Ordinance to convict and punish the contemnor in contempt of Court.

1. Section 19 of the Contempt of Court Ordinance, 2003 provides a remedy of appeal which provision of law reads as under:-

“19. Appeal.--(1) Notwithstanding anything contained in any other law or the rules for the time being in force, orders passed by a superior Court in cases of contempt shall be appealable in the following manner:--

(i) in the case of an order passed by a single judge of a High Court an intra-Court appeal shall lie to a bench of two or more judges;

(ii) in a case in which the original order has been passed by a division or larger bench of a High Court an appeal shall lie to the Supreme Court; and

(iii) in the case of an original order passed by a single judge or a bench of two judges of the Supreme Court an intra-Court appeal shall lie to a bench of three judges and in case the original order was passed by a bench of three or more judges an intra-Court appeal shall lie to a bench of five or more judges.

(2) The appellate Court may suspend the impugned order pending disposal of the appeal.

(3) The limitation period for filing an appeal shall be thirty days.”

1. The main controversy revolves around the word “orders passed in cases of contempt”. As the plural word “orders” has been used in the above provision of Section 19 of the Ordinance ibid. It is appropriate to determine whether all kind of orders including interim, interlocutory or the final order passed in contempt proceedings are appealable. As the word orders has not been defined in the very Ordinance, it is appropriate to trace out its meaning from sister legislation as parimateria.

In Section 2(14) of the Civil Procedure Code word order has been described as:

“(14) “Order” means the formal expression of any decision of a Civil Court which is not a decree:

According to Order XLIII, CPC only the effective, determinative orders are appealable. Normally an order has following characteristics:-

(i) Order which finally resolved the controversy.

(ii) Order which materially and directly affect the final decision.

(iii) The order which causes some inconvenience/prejudice the party without there being any final determination.

(iv) The routine order passed to facilitate the progress in reaching the final order or judgment.

The conjoint reading of definition of word “order” or “orders” provided in Section 2(14) of CPC and in order XLIII, CPC, it can be said that word “order” means “the formal expression of any final decision” and any order which is not founded on any decision is devoid of attaining the status of an order. The challenging of each and every interim procedural kind of order will over-flood the litigation and would make the very litigations as well as the proceedings whereunder as unending. This liberty would practically negate the spirit and intent behind the legislation of Article 204 of the Constitution and entire proceedings in original jurisdiction of the superior Court (High Court) would become virtually inexecutable and worthless. Only such orders, decisions, judgments which finally terminate the contempt proceedings against the contemnor are appealable. The word “order passed in contempt” means the order only awarding punishment and it is the said order which can be assailed in Intra Court Appeal, whereas the interlocutory interim or procedural orders do not fall within the ambit of the order passed in contempt of Court. Reliance is placed on the case titled West Pakistan Water and Power Development Authority through its Chairman vs. Chairman, National Industrial Relations Commission (PLD 1979 SC 912) wherein the Hon’ble Supreme Court (Five Members Bench) has held that:

“When therefore, Section 10 talks of an “order under this Act” being appealable, in its very nature confining ourselves to the facts and circumstances of the present case, it means an order of conviction and not an order of the kind involved herein.”

(emphasis supplied)

Further in M.H.Khondkar and another vs. The State and another and M.Noman vs. The Dacca Improvement Trust and 3 others (1971 SCMR 743) one M. Noman filed contempt petition against Dacca Improvement Trust and the said petition was dismissed and a show cause notice was issued to said Noman as to why he should not be punished in contempt of the Court. He challenged the rejection of his contempt petition as well as issuance of show cause notice to him, in the Special Leave to appeal and the Hon’ble Supreme Court of Pakistan dismissed the said petition as such it can safely be observed that matter of the initiation or exonerating the contemnor from contempt proceedings is exclusively between the Court and the contemnor and any procedural, interlocutory, interim order passed in this regard do not fall within the domain of Section 19 of the Ordinance, 2003 ibid and no Intra Court Appeal is available against such orders.

1. As a parimeteria in the Indian Contempt of Court Act, 1971, a right of appeal is provided against any order or decision passed by the superior judiciary in its original jurisdiction which provision is as under:-

“19. Appeals.--(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt--

(a) where the order or decision is that of a single judge, to a Bench of not less than two Judges of the Court:

(b) where the order or decision is that of a Bench, to the Supreme Court:

Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court.

(2) Pending any appeal, the appellate Court may order that--

(a) the execution of the punishment or order appealed against be suspended;

(b) if the appellant is in confinement, he be released on bail; and

(c) the appeal be heard notwithstanding that the appellant has not purged his contempt.

(3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by sub-section (2).

(4) An appeal under sub-section (1) shall be filed,--

(a) in the case of an appeal to a Bench of the High Court, within thirty days;

(b) in the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against.”

The question whether any order or decision passed in contempt proceedings would mean every procedural, interim, interlocutory order passed for reaching the main conclusion, is appealable as a matter of right. The issue of availability of remedy of appeal against interim, interlocutory, procedural order passed in contempt of Court proceedings was resolved by the Supreme Court of India in a case reported as Midnapore Peoples Co-op. Bank Ltd. v. Chunilal Nanda (AIR 2006 SC 2190) wherein it has been observed that in the event of orders refusing to initiate contempt proceedings or initiating contempt proceedings or acquitting/exonerating the contemnor or dropping the proceedings for contempt, appeal would not be maintainable as the appeal under Contempt of Court laws is provided only in respect of orders punishing for contempt. In another case cited as B.N.Taneja (1FS) v. Bhajan Lal [1988 (3) SCC 26] it has been observed that right of appeal in contempt proceedings is only against any decision or order of a High Court passed in the exercise of its jurisdiction to punish for contempt. Similar view has been taken in other judgments of Indian

Jurisdiction cited as Union of India v. Mario Cabrale Sa (AIR 1982 SC 691), State of Maharashtra v. Mahboob S. Allibhoy [1996 (4) SCC 411] and J.S. Parihar v. Ganpat Duggar [1996 (6) SCC 291].

8. Bare perusal of the interim order dated 24.09.2020 shows that the learned Single Judge-in-Chamber on preliminary hearing and before initiation of the legal proceedings in contempt provided an opportunity to the appellants to comply with order dated 15.07.2020. The impugned order is mere a procedural innocuous order in nature which does not inflict any sort of punishment upon the appellants. Such procedural order which does not inflict any penalty or punishment to the contemnor is not appealable, as such, Intra Court Appeal against procedural orders is not maintainable.

9. Today learned counsel for the appellants, while advancing arguments, submitted that the appellants are ready to comply with the order dated 15.07.2020, passed by learned Single Judge-in-Chamber but due to non-furnishing of the required documents by the respondent, the matter is being delayed. This plea of the appellants stand negated on the principle of approbate and reprobate as on the one hand the appellants have filed reference before the departmental forum, desisted the constitutional petition of the respondent, filed Review Application, contempt petition and also have assailed the interim procedural order of the learned Single Bench through instant Intra Court Appeal, which shows that they are deliberately avoiding to comply with the order and lingering on the matter on one pretext or the other.

1. In view of above, instant Intra Court Appeal is hereby dismissed in limine being not maintainable.

(Y.A.) Appeal dismissed

PLJ 2021 Lahore 479

Present:Ch. Muhammad Iqbal, J.

Mst. SULLI etc.--Petitioners

versus

SHERA etc.--Respondents

W.P. No. 1222 of 2013, decided on 9.10.2020.

Consolidation of Holding Ordinance, 1960 (VI of 1960)--

----S. 10(3)--Constitution of Pakistan, 1973, Art. 199--Confirmation of consolidation scheme with consent of parties--Appeal--Accepted--Case was remanded--Revision petition--Dismissed--Time-barred--Concurrent decisions of consolidation Revenue authorities--Writ petition--Disposed of--Direction to--Review petition--Principle of laches--Challenge to--Writ petition has been filed by petitioners after lapse of about 01 year and 02 months without explaining any convincing and reasonable cause of this inordinate delay, as such, principle of laches is fully applicable upon this case--Matter in issue pertains to consolidation proceedings which contain factual controversy and same cannot be resolved in constitutional jurisdiction and this Court ordinarily avoids to re-appraise such factual controversy in its writ jurisdiction as it cannot sit as an appellate Court against concurrent decisions of Consolidation Revenue Authorities--It is settled law that allocation and demarcation of land is left open for domain of Consolidation Officer and this Court in exercise of Article 199 of Constitution should not reappraise such factual controversies, but should concern itself only with legality of orders and not its propriety--Petition dismissed.

[Pp. 482 & 483] A, B & C

2013 SCMR 238, 2004 SCMR 587, 2006 SCMR 951, 2007 SCMR 1950, 1970 SCMR 292, 1989 SCMR 1817 and 1997 SCMR 1611 ref.

Mr. Iqbal Ahmad Khan, Advocate for Petitioners.

Mr. Asif Mahmood Cheema, Addl. Advocate General for State.

Date of hearing: 9.10.2020.

Order

Through this writ petition, the petitioners have challenged the vires of order dated 24.06.2004 passed by the Member (Colonies), Board of Revenue, who dismissed ROR No. 3045/1982 filed by the petitioners and order dated 01.12.2011 passed by the Member (Judicial-VI), Board of Revenue, Punjab whereby Review No. 255 of 2005 in ROR No. 3045/1982 filed by the petitioners was dismissed.

1. Brief facts of the case, as contained in this writ petition, are that consolidation scheme of revenue estate Bhabhrana, Tehsil Laalian, District Chiniot; was confirmed by the Consolidation Officer under Section 10(3) of the Consolidation of Holding Ordinance, 1960 on 31.3.1977 with the consent of parties. Against the said order, respondents Shera etc., filed appeal before the Collector (Consolidation) which was accepted vide order dated 28.08.1977 and case was remanded to the Consolidation Officer who submitted his proposal before Collector for the amendment in the scheme which was allowedvide order dated 12.07.1981. Against the said order, respondents again filed appeals before the Additional Commissioner (Consolidation) which were accepted vide order dated 22.11.1981 and the case was remanded back to the Collector (Consolidation) who again recommended for amendments in the schemevide order dated 19.06.1982. Three appeals were filed before the Additional Commissioner Consolidation which were accepted vide order dated 23.9.1982 and this time again the case was remanded to the Consolidation Officer to amend the scheme. Against the said order, the Revision Petition ROR No. 3045/1982 titled as Sulli etc., vs. Shera etc., filed by the .petitioners and ROR No. 757/84 titled as Shera etc. vs Sulli etc., filed by the respondents were dismissed by the Member Board of Revenue vide order dated 24.06.2004 being time barred. The petitioners filed Writ Petition No. 17416 of 2004 before this Court which was disposed of vide order dated 05.05.2005 with the observation that the petitioners may file the review petition before the Board of Revenue. The petitioners filed Review (No. 255/2005 in ROR No. 3045 of 1982) was also dismissed by the Member (Judicial-VI), Board of Revenue, Punjab vide order dated 01.12.2011. Hence, this writ petition.

2. I have heard the learned counsels for both the parties at full length and gone through the entire record with their able assistance.

3. The petitioners’ revision petition (ROR No. 3045/1982) was dismissed by the Member (Colonies), Board of Revenue, vide order dated 24.06.2004. The petitioners challenged the same through a writ petition which was disposed of vide order dated 05.05.2005 with the observation that the petitioners can avail remedy of review before the Board of Revenue. The petitioners then filed review petition (No. 255/2005) which was dismissed by the Member, Board of Revenue on 01.12.2011. The impugned order was passed by the Board of Revenue on 01.12.2011 whereas the petitioners filed the instant writ petition on 16.01.2013 after lapse of about 01 year and 02 months. When this fact confronted, the learned counsel for the petitioners submits that on 01.12.2011, the Full Board, Board of Revenue reserved the judgment in the review petition filed by the petitioners. The petitioners filed application on 18.07.2012 for obtaining certified copy of order dated 01.12.2011 which was supplied to them on 02.11.2012 and thereafter the petitioners filed instant writ petition.

Perusal of the impugned order dated 01.12.2011 shows that the decision was announced on 01.12.2011 without keeping it reserve whereas the petitioners themselves remained indolent and filed application for obtaining certified copy of above order on 18.07.2012 i.e. after lapse of about 07 months, which copy was delivered to them on 02.11.2012. Even after receiving the certified copy on 02.11.2012, the petitioners remained silent and filed instant writ petition on 16.01.2013 i.e. again after lapse of about 02-months & 14-days.

As discussed above, instant writ petition has been filed by the petitioners after lapse of about 01 year and 02 months without explaining any convincing and reasonable cause of this inordinate delay, as such, principle of laches is fully applicable upon this case. Reliance is placed on the case titled as Mubarik Ali & others vs. The Settlement & Rehabilitation Commissioner, Lahore & others (1968 SCMR 1235) wherein the Hon’ble Supreme Court of Pakistan held as under:

“A learned Single Judge of that Court dismissed the writ petition on the ground that it was a belated one as the order under challenge was passed on the 12th May 1962, and the writ petition was filed on the 4th November 1963, and therefore there was no satisfactory explanation for the delay in filing the writ petition. This order of the learned Single Judge was affirmed in the Letters Patent Appeal filed by the petitioners. It has been found that it was not one of cases in which it could be said that the learned Single Judge had exercised discretion on erroneous or improper consideration because the petitioners had no reasonable explanation for inordinate delay in filing the writ petition. It has been contended by Muzaffar Ahmad Mian that delay per se is not a ground for refusing a relief. We are not impressed by this argument. The learned Judge had a discretion and as this has been exercised judicially there is no scope for interference by this Court.”

Each and every legal remedy of the aggrieved person again an order is time specific and after expiry of said period the said remedy stands ineffective and does not rescue the said litigant whereas delayed challenging the impugned order, in itself is a sufficient ground for denying relief to the petitioner. In this regard, the Hon’ble Supreme Court of Pakistan in a case titled as Trustees of the Port of Karachi vs. Organization of Karachi Port Trust Workers & others (2013 SCMR 238) held as under:

“12. Undoubtedly, the provisions of Limitation Act, 1908 cannot be strictosensu made applicable to the claims set forth in the constitutional jurisdiction of the High Court, but if the claim on the face of it is barred by law of limitation in relation to the suit, the relief should be refused to the writ petitioners on the rule of laches and past and closed transaction.

5. From the perusal of record, it reveals that matter in issue pertains to the consolidation proceedings which contain factual controversy and same cannot be resolved in constitutional jurisdiction and this Court ordinarily avoids to re-appraise such factual controversy in its writ jurisdiction as it cannot sit as an appellate Court against the concurrent decisions of Consolidation Revenue Authorities. The orders made by the Consolidation authorities with regard to allocation of land are not fit matters which can be agitated in writ jurisdiction. It is settled law that the allocation and demarcation of land is left open for the domain of Consolidation Officer and this Court in exercise of Article 199 of the Constitution should not reappraise such factual controversies, but should concern itself only with legality of orders and not its propriety. Reliance is placed on the case titled as GhulamRasool and others vs. Member (Consolidation}, Board of Revenue and others (2004 SCMR 587) wherein it is held as under:

“7. The review of the case-law by both sides does indicate that the precise allocations and demarcations have to be left with the Consolidation Officer and this Court, in exercise of jurisdiction under Article 199 of the Constitution, should not reappraise such factual controversies. It should concern itself with the legality of the orders and not the propriety of the same. In any case, after hearing the two sides as well as the learned Assistant Advocate-General, I have not been persuaded to hold that the impugned directions of the learned M.B.R, in any manner are unjust or have caused miscarriage of justice.”

In another case titled as Manzoor Hussain & others vs. Member (Judicial-II). Board of Revenue & others (2006 SCMR 951), the Hon’ble Supreme Court of Pakistan observed that Consolidation of holdings and consequent distribution of Wandas being a question of fact, could not be gone into by this Court in exercise of Constitutional jurisdiction. Such question would be examined and decided by the Consolidation Authorities under West Pakistan Consolidation of Holdings Ordinance, 1960 held as under:

“Consolidation of holdings and consequent distribution of Wandas is essentially a question to be examined and decided by the Consolidation Authorities under Consolidation of Holdings Ordinance, 1960. The matter was examined at various stages including the Board of Revenue which had occasioned to scrutinize the issue twice i.e. firstly in its revisional jurisdiction and secondly, on a review filed by the present petitioners. The petitioners then approached the Honourable High Court invoking its Constitutional jurisdiction and their petition failed as it was found by the learned Judge in Chamber that the question being essentially one of the fact could not be gone into by the High Court in exercise of its extraordinary Constitutional jurisdiction. It was also mentioned by the learned- Single Judge that the deficiency of land upto ten Marlas is permissible and in the petitioners’ case the deficiency was only eight Marlas.”

In another case titled as Muhammad Hayat & others vs. Member (Consolidation) Board of Revenue & others (2007 SCMR 1950), wherein the Hon’ble Apex Court observed that unless there was deficiency in the entitlement of a right holder, adjustment or allocation of land in consolidation has never been considered to be a fit subject matter for being examined and adjudicated upon in constitutional jurisdiction. Land owners cannot possibly get the entire previously owned land or land of their choice as certain adjustments are inevitable to give effect to the object of consolidation of holdings held as under:

“4. ... It may be noted that unless there is deficiency in the entitlement of a right holder, adjustment or allocation of land in consolidation has never been considered to be a fit subject-matter for being examined and adjudicated upon, in constitutional jurisdiction. We will like to add that the landowners cannot possibly get the entire previously owned land or land of their choice as certain adjustments are inevitable to give effect to the object of consolidation of holdings.”

Reliance is placed on the cases titled as Ghulam Qadir vs. Member Board of Revenue, West Pakistan, Lahore & 4 others (1970 SCMR 292) Allah Rehman and others vs Amtul Qayyum and another (1989 SCMR 1817), Asad Riaz vs. Member, Board of Revenue, Punjab, Lahore and 4 others (1997 SCMR 1611).

1. In view of above, this writ petition is dismissed being devoid of any merits.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 485[Multan Bench, Multan]

Present: Ch. Muhammad Iqbal, J.

MUHAMMAD SAJJAD--Petitioner

versus

ADJ etc.--Respondents

W.P. No. 1802 of 2019, heard on 8.2.2021.

Muslim Family Laws Ordinance, 1961 (VII of 1961)--

----Ss. 7 & 10--“Talaq” & “Dower”--Condition of divorce mentioned in Nikahnama--Suit for recovery of dower to the extent of 5-Tolas gold ornaments of Respondent No. 3 was dismissed and house measuring 05-Marlas was decreed and suit for recovery of Rs.5,00,000/- as per stipulation mentioned in Nikahnama was also decreed--Conditions mentioned in Column No. 16 of Nikahnama--Claim of recovery of Rs.500,000/- by the respondent/plaintiff from the petitioner/defendant on the ground of second marriage--it was mentioned in the Clause 19--Allah Almighty in Holy Qur’an has delegated uncovenanted powers to the husband to pronounce Talaq to his wife in order to avoid any transgression of Islamic bounds--A husband has an absolute right to divorce his wife and in this regard no condition is described in the Sharia as well as in the codified law--The husband has a right to divorce his wife from his free will and no condition can be imposed in this regard--The judgments of the learned Courts below to the extent of Issue No. 4 suffer from patent illegality and are liable to be set aside--Writ petition is hereby partly accepted.

[Pp. 487, 488 & 490] A, B, C, D, E, F & G

Ayat Nos.227-228 of Surah Al- Baqarah, 01st Ayat of Surah At-Talaq, the Sunnah of Holy Prophet from Hadith No. 235 of Bukhari Sharif, Section 105 Chapter XII of the Code of Muslim Personal Law (written by Dr. Tanzil-ur-Rahman, Ex-Judge of Sindh High Court, Volume 1) the Delegation of right of Divorce (Tafwid at-Talaq) 2008 SCMR 186 ; 2012 CLC 837; 2018 CLC 1844

Muslim Family Laws Ordinance, 1961 (VIII of 1961)--

----Ss. 7 & 10--“Talaq” & “Dower”--Condition of divorce mentioned in Nikahnama--A husband has an absolute right to divorce his wife and in this regard no condition is described in the Sharia as well as in the codified law. [P. 490] E

2008 SCMR 186

Malik Javed Akhtar Wains, Advocate for Petitioner.

Jam Ghulam Asghar, Advocate for Respondent No. 3.

Date of hearing: 8.2.2021.

Judgment

Through this writ petition, the petitioner has challenged the validity of consolidated judgment and decree dated 20.10.2017 only to the extent of dower passed by the learned Judge Family Court, Jalalpur Pirwala and consolidated judgment and decree dated 05.05.2018 passed by the learned Addl. District Judge, Jalalpur Pirwala who partly accepted the appeal of Respondent No. 3 and dismissed the appeal of the petitioner.

1. Brief facts of the case are that Respondent No. 3/plaintiff contracted marriage with the petitioner/defendant on 07.02.2016. Respondent No. 3 filed three suits for recovery of maintenance allowance and dowry articles valuing Rs.5,52,000/-, dower weighing 05-Tola gold ornaments and 05- Marlas constructed house as well as recovery of Rs.5,00,000/- against the petitioner in which the petitioner appeared and filed contesting written statement as well as also filed suit for restitution of conjugal rights. As many as 9 issues were framed which are as under:--

2. Whether the plaintiff is entitled for recovery of maintenance allowance from the defendant as prayed for, if so, on what grounds? OPP

3. Whether the plaintiff is entitled for recovery of dowry articles as prayed for from the defendant, if so, on what grounds? OPP

4. Whether the plaintiff is entitled to recover dower from the defendant as prayed for, if so, on what grounds? OPP

5. Whether the plaintiff is entitled to recover Rs.5,00,000/- from the defendant because of defendant’s second marriage without permission of plaintiff? OPP

6. Whether the suits of the plaintiff are false, frivolous, and concocted, the same are liable to be dismissed? OPD

7. Whether the plaintiff has not come to the court with clean hands and estopped by her words and conduct, if so, on what grounds? OPD

8. Whether the plaintiff has filed suits just to harass and blackmail the defendant, if so, on what grounds? OPD

9. Whether the defendant is entitled to the decree for restitution of conjugal rights as prayed for, if so, on what grounds? OPD

10. Relief.”

After framing of the issues, both parties led their pro and contra oral as well as documentary evidence. The learned Judge Family Court, Jalalpur Pirwala vide consolidated judgment and decree dated 20.10.2017 decreed the suits for recovery of maintenance allowance of Respondent No. 3 declaring her entitled to get maintenance allowance @ Rs.5000/-per month with 10% annual increment from April, 2016 till her legal entitlement. Suit for recovery of dowry article was decreed to the extent of Rs.25,000/- and rest of claim of dowry articles was dismissed. Suit for recovery of dower to the extent of 5-Tolas gold ornaments of Respondent No. 3 was dismissed and house measuring 05-Marlas was decreed and suit for recovery of Rs.5,00,000/- as per stipulation mentioned in Nikahnama was also decreed as prayed for whereas suit of the petitioner for restitution of conjugal rights was also decreed subject to payment of dower. Both parties filed appeals respectively and the learned Addl. District Judge, Jalalpur Pirwala partly accepted the appeal of Respondent No. 3 and dismissed the appeal of the petitioner vide consolidated judgment and decree dated 05.05.2018. Hence, this writ petition.

1. I have heard the learned counsels for the parties at some length and gone through the record with their able assistance.

4. Initial onus of proving the assertion raised in the plaint was placed on the shoulder of the plaintiff/Respondent No. 3. As per Column No. 16 of document of Nikahnama (Exh.P-2) of Mst. Rehana Mai daughter of Haji Muhammad Sadiq it is written as under:-

16۔ پانچ مرلہ پلاٹ محلہ حافظ آباد میں مکان پختہ بنوا کر دونگا۔

The other copy of Nikahnama (Exh.P-3) of the petitioner with Mst. Rehana Mai Column No. 16 whereof also contains stipulation as under:-

16۔ 5 مرلہ مکان بستی ٹھار والی میں مکمل بنوا دیں گے جلال پور پیر والامحلہ حافظ آباد میں مکمل بنوا دونگا۔

But copy of Nikahnama (Exh.P-2) does not contain any cutting or tempering whereas copy of Nikahnama (Exh.P3) of the spouses contain certain cutting and interpolation but in this regard neither objection was raised in the written statement nor objected when it was got exhibited in the evidence by the petitioner whereas both aforementioned documents almost contain the same stipulation regarding Column No. 16 of the Nikahnama. It is also proved on record that house/plot measuring 05-Marlas situated at Hafizabad was settled between the parties. With regard to existence of cutting in Column No. 16 of Ex.P3 Saeed Ahmad Nikah Khawan/ Registrar (PW-3) has clarified in his statement that in first leaf five marla constructed house situated at Basti Tharwali was mentioned in Nikahnama but later on same was crossed/cancelled and Mohalla Hafizabad City Jalapur Pirwala was mentioned with mutual consent of parties and this part of his statement has not been questioned/shaken in cross-examination which deposition is deemed to be correct/ admitted. As such, the learned courts below rightly passed the impugned judgments & decrees and no illegality has been committed.

5. As regard the claim of recovery of Rs. 500,000/- by the respondent/plaintiff from the petitioner/defendant on the ground of second marriage is concerned, which controversy is encompassed in Issue No. 4 that:

Whether the plaintiff is entitled to recover Rs. 5,00,000/- from the defendant because of defendant’s second marriage without permission of plaintiff? OPP

The respondent/plaintiff has contended that at the time of registration of Nikah, it was mentioned in the Clause 19 that in case the petitioner/ defendant divorces the respondent/plaintiff, he will pay an amount of Rs.500,000/-. With regard to imposition of clog on the right of a husband qua pronouncing divorce, Allah Almighty in Holy Qur’an has delegated uncovenanted powers to the husband to pronounce Talaq to his wife in order to avoid any transgression of Islamic bounds. In this regard I seek guidance from Ayat Nos.227-228 of Surah Al- Baqarah, which is as under:

| | | | --- | --- | | 227. But if their intention Is firm for divorce, Allah heareth And knoweth all things. | اور اگر ارادہ کر لیں طلاق کا تو بیشک اللہ ہر بات سننے والا، سب کچھ جاننے والا ہے۔ | | 228. Divorced women Shall wait concerning themselves For three monthly periods. Nor is it lawful for them To hide what Allah Hath created in their wombs, If they have faith In Allah and the Last Day. And their husbands Have the better right To take them back In that period, if They wish for reconciliation. And women shall have rights Similar to the rights Against them, according To what is equitable; But men have a degree (Of advantage) over them. And Allah is Exalted in Power, Wise. (translation by Abdullah Yusuf Ali) | اور طلاق یافتہ عورتیں روکے رکھیں اپنے آپ کو تین حیض تک۔ اور نہیں جائز ہے ان کے لئے یہ کہ چھپائیں وہ اس کو جو کچھ پیدا کیا ہے اللہ نے ان کے رحم میں اگر وہ ایمان رکھتی ہیں اللہ پر اور آخرت کے دن پر۔ اور ان کے خاوند زیادہ حقدار ہیں انہیں لوٹا لینے (اپنی زوجیت میں) اس (مدت) میں اگر وہ چاہیں صلح کرنا۔ اور عورتوں کے بھی حقوق ہیں ویسے ہی جسے ان پر ہیں۔ (مردوں کے) دستور کے مُطابق البتہ مردوں کو عورتوں پر ایک درجہ حاصل ہے۔ اور اللہ غالب ہے بڑی حکمت والا ہے۔ (اردو ترجمہ): مرتبہ: مولانا سید شبیر احمد |

Further in 01st Ayat of Surah At-Talaq, Allah Almighty says as under:-

| | | | --- | --- | | O Prophet! when ye Do divorce women, Divorce them at their Prescribed periods, And count (accurately) Their prescribed periods : And fear Allah Your Lord: And turn them not out Of their houses, nor shall They (themselves) leave, Except in case they are Guilty of some open lewdness. Those are limits Set by Allah : and any Who trans gresses the limits Of Allah, does verily Wrong his (own soul: Thou knowest not if Perchance Allah will Bring about thereafter Some new situation. (translation by Abdullah Yusuf Ali) | اے نبی! جب طلاق دو تم عورتوں کو تو طلاق دو تم انہیں اس طرح کہ وہ عدت شروع کر سکیں اور ٹھیک ٹھیک شمار کرو عدت (کے زمانہ) کا۔ اور ڈرو اللہ سے جو تمہارا رب ہے۔ اور نہ نکالو تم انہیں ان کے گھروں سے اور نہ وہ خود نکالیں الایہ کہ ارتکاب کریں وہ کسی کھلی بد کاری کا۔ اور یہ اللہ کی (مقرر کردہ) حدیں ہیں۔ اور جو تجاوز کرے گا اللہ کی مقرر کردہ حدود سے تو درحقیقت وہ ظلم کرے گا اپنی ہی جان پر۔ نہیں جانتے تم شاید کہ اللہ پیدا کردے اس کے بعد بھی (موافقت کی) کوئی صورت۔ (اردو ترجمہ) مرتبہ: مولانا سید شبیر احمد |

Further guidance in this regard can be taken from the Sunnah of Holy Prophet from Hadith No. 235 of Bukhari Sharif, which reads as under:-

اسماعیل بن عبداللہ، مالک، نافع، عبداللہ بن عمر سے روایت کرتے ہیں کہ انہوں نے اپنی بیوی کو رسول اللہ صلی اللہ علیہ وسلم کے عہد میں بحالت حیض طلاق دیدی حضرت عمر رضی اللہ تعالیٰ عنہ نے نبی ﷺ سے اس کے متعلق پوچھا، تو آپ نے فرمایا کہ اس کو رجوع کرنے کا حکم دو پھر وہ اسکو روکے رکھے، یہاں تک کہ پاک ہو جائے پھر حیض آئے پھر پاک ہو جائے پھر اگر چاہے تو صحبت کرنے سے پہلے طلاق دے یہی وہ عدت ہے جس کے لئے عورتوں کو طلاق دیئے جانے کا حکم اللہ تعالیٰ نے دیا ہے۔

Section 105 Chapter XII of the Code of Muslim Personal Law (written by Dr. Tanzil-ur-Rahman, Ex-Judge of Sindh High Court, Volume 1) the Delegation of right of Divorce (Tafwid at-Talaq) is described which is reproduced as under:

Delegation of the right of divorce: It is lawful for the husband to delegate to the wife the right of effecting divorce. In that event, however, his own right of effecting divorce shall not lapse.

Even otherwise, Section 7 (1) of the Muslim Family Laws Ordinance, 1961 deals with Talaq, which is reproduced as under:

“S. 7 ‘Talaq’. (1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.”

5. From the perusal of afore-mentioned glorious references of Holy Quran and Sunnah as well as provisions of Section 105 of the Code of Muslim Personal Law written by Dr. Tanzeel-ur-Rehman and Section 7 of the Muslim Family Laws Ordinance, 1961, a husband has an absolute right to divorce his wife and in this regard no condition is described in the Sharia as well as in the codified law. In this regard, the Hon’ble Supreme Court of Pakistan in the case reported as Muhammad Bashir Ali Siddiqui Vs Mst. Sarwar Jahan Begum and another (2008 SCMR 186) has also declared that the condition/restriction on the right of a husband to divorce his wife, is illegal. The condition if any imposed in the Nikahnama for the award of damages on account of alleged unjustified divorce is against the basic principle of Islamic Law. The husband has a right to divorce his wife from his free will and no condition can be imposed in this regard. Reliance can also be placed on the cases titled as Mst. Zeenat Bibi Vs Muhammad Hayat and 2 others (2012 CLC 837) and Muhammad Asif Vs Mst. Nazia Riasat and 2 others (2018 CLC 1844). As such, the judgments of the learned Courts below to the extent of Issue No. 4 suffer from patent illegality and are liable to be set aside. Therefore, the findings of the learned Courts below on Issue No. 4 are hereby reversed and this issue is decided against the respondent/plaintiff.

1. In view of above, this writ petition is hereby partly accepted only to the extent of findings of the learned Courts below to the extent of Issue No. 4 whereas to the extent rest of the findings, the same is dismissed.

(K.Q.B.) Petition accepted

PLJ 2021 Lahore 491

Present:Shahid Bilal Hassan, J.

FAISAL AFZAL through Attorney--Petitioner

versus

CHIEF SETTLEMENT COMMISSIONER, (Residual properties/Notified Officers), Lahore and 3 other--Respondents

W.P. No. 43553 of 2019, decided on 19.12.2019.

Constitution of Pakistan, 1973--

----Art. 199--Allotment of evacuee property--Verification of transfer order--Application for approval of construction of building plan--Issuance of approval letter--Seizition of property--Appeal--Dismissed--Properties were desealed after verification by Civil Court--Interim order--Maintainability--Challenge to--Property of petitioner was de-sealed after due verification by Civil Courtvide order dated 17.05.2019 and petitioner was making construction thereon--Inspite of having knowledge of above said order, Respondent No. 1/Chief Settlement Commissioner has initiated proceedings on application of Respondents No. 2 to 4--Present petitioner filed a C.M. No. 03 of 2018 under Section 12(2) of CPC against said order, which was disposed of with a direction to Respondent No. 4 to associate applicant in said proceedings and then proceed accordingly in terms of order dated 26lh November, 2018--petitioner being aggrieved of said order filed an Intra Court Appeal Bearing No. 256558/2018 but same was dismissed--Merits of case cannot be entertained and discussed in instant petition, because matter is sub judice--Pursuant to orders of this Court and in view of ratio of above said judgments, writ petition in hand is not maintainable; thus, no relief as prayed for can be granted to petitioner, as impugned order has been passed with jurisdiction--Petitioner has also taken recourse to Civil Court by filing a suit titled "Faisal Afz.nl v. Chief Settlement Commissioner (Residual properties/Notified Officer, Punjab, (Member Judicial-VIII), Board of Revenue Lahore, etc." for declaration with consequential relief, so any findings at this stage, may prejudice case of cither of party, pending before competent Court of jurisdiction and it would amount to hamper said proceedings--Petition dismissed.

[Pp. 493, 496, 497 & 498] A, B, C, D & E

Mian Muhammad Hussain Chotiya, Advocate for Petitioner.

M/s. Ch. Iqbal Ahmad Khan and Ahmad Waheed Khan, Advocates for Respondents No. 2 to 4.

Mr. Muhammad Yaqoob Kanjoo, Advocate for Respondent No. 1.

Syed Shadab Jafri, Additional Advocate General for Respondent.

Date of hearing: 17.10.2019.

Judgment

Precisely, the facts as emerged from the memorandum of petition are as such that property No. F-2572 situated Inside Kashmiri Gate, Lahore being Evacuee Properly was allotted/transferred through Transfer Order No. 17481 dated 05.11.1974 by the Deputy Commissioner (Settlement), Lahore on 06.01.1974 to one Rana Muhammad Ashfaq son of Muhammad Ishaque. Its first sale was made through sale deed dated 20.03.1979 and finally it is now in the ownership and possession of the present petitioner through registered sale (Annexure-B/1). The said Transfer Order No. 17481 dated 05.11.1974 was verified on the application of one Muhammad Bashir through minutes of meeting dated 30.08.2016 under Letter No. 372/2015/1787/OIR by the Board of Revenue (Settlement and Rehabilitation Wing/Provincial Verification Committee (PVC) Farid Kot House, Lahore) and through Letter No. 1965/18/1274/OIR dated 19.10.2018 was submitted to ADCR, Lahore. The petitioner being owner in possession of the said property applied for approval of constructions of building plan to Walled City Lahore which was approved through Letter No. 101403 dated 30.07.2018 and the petitioner was making his construction as per approved building plan when firstly Respondent No. 2 and others tried to interfere into constructions of the petitioner, therefore, he instituted a suit and construction making order dated 01.12.2018 was issued by the learned Civil Judge seized of the matter, the position remained the same in appeal and writ petition Bearing No. 87/2019 filed by the Respondents No. 2 to 4 was dismissed on 02.04.2019 by this Court, too.

On Human Rights Application of one Mst. Humaira daughter of Respondent No. 2/Safia Qayyum before the Hon'ble Apex Court, the properties were sealed by order dated 12.01.2019 subject to decision of civil Court and verification of the ownership/entitlement documents. Finally, the property of the petitioner was de-sealed after due verification by the Civil Court vide order dated 17.05.2019 and the petitioner was making construction thereon. Inspite of having knowledge of the above said order, the Respondent No. 1/Chief Settlement Commissioner has initiated proceedings on application of Respondents Nos. 2 to 4, kllegedly in violation of law as well as dictum laid down in Dr. Ahmad Iqbal and 9 others v. Member Board of Revenue Chief Settlement Commissioner etc. (PLD 2010 Lahore 249). Hence, the instant constitutional petition.

2. It has been argued on behalf of the learned counsel for the petitioner that Khan Muhammad got land measuring 1-kanal, 19 marlas, 176 sq.ft. through agreement for sale dated 20.03.1952 of damaged scheme but no property number was mentioned therein; even the terms of agreement were not fulfilled. Adds that above said land was not transferred in favour of Khan Muhammad through any lawful document. Maintains that husband of Mst. Safia Qayyum fraudulently created sale deed in her favour on the basis of agreement for sale dated 20.03.1952. FIR No. 188/2018 was lodged at Police Station Lower Mall by Sub-Registrar against Safia Qayyum, etc. and they were found guilty by police, who are facing trial. Moreover, show-cause notice dated 02.10.2018 by ADC(R), Lahore for fraudulent sale deed was issued to them. Alleges that Respondents No. 2 to 4 admitted property and allotment F-2572 correct in partnership deed dated 10.07.2017 and same remained the situation in their bogus sale deed. As such, the Respondents No. 2 to 4 have no locus standi and no concern with the property owned by the petitioner. The property of the petitioner is Evacuee Property whereas the claim property of Respondents No. 2 to 4 is of Damaged Scheme of LTI now LDA/Punjab Govt. meaning thereby these are two different properties with different locations, situations and status. Contends that Chief Settlement Commissioner has no jurisdiction to entertain and adjudicate upon the matter in hand after cut-off date i.e. 01.07.1974 and cancel the Transfer Order, because the matter of property of the petitioner was not pending at that time and after the time of promulgation of Evacuee and Displaced Persons Laws (Repeal) Act, 1975 the Respondent No. 1 has become functus officio. Further contends that neither Settlement Department has litigated nor claimed nor challenged the allotment in favour of original allottee, through whom the petitioner derived his right. After observing all legal formalities the Settlement Department declared Transfer Order as correct with allotment; hence, the proceedings before the Respondents No. 1 are without lawful authority, without jurisdiction, corum non judice, without backing of law and with mala fide intention. Therefore, by allowing the writ petition hand bearing No. 43553 of 2019, it may be declared that after verification report of Transfer Order in question by the Provincial Verification Committee dated 30.08.2016, the Respondent No. 1 has no powers to hear against this report of PVC being higher in rank and competent Committee; it may also be declared that after cut-off date i.e. 01.07.1974 coming repeal of Evacuee Laws and Evacuee and Displaced Persons Law (Repeal) Act, 1975, the proceedings regarding T.Os. PTOs and PVC report before the Respondent No. 1 are ultra vires to laws and case law; moreover, all the orders and proceedings before the Respondent No. 1, even restraining orders dated 03.07.2019 of Respondent No. 1 or any other restraining order may please be set aside. Relies on Ch. Sir Muhammad Zafrullah Khan, etc. v.The Custodian of Evacuee Property, West Pakistan and Karachi, etc. (PLD 1964 Supreme Court 865), Sher Afzal Khan and others v. Haji Razi Abdullah and others (1984 SCMR 228), Shamshad and others v. Mukammil Shah and others (1984 SCMR 912), Mst. Iqbal Siddiqui v. Assistant Settlement Commissioner (Urban) and others (PLD 1984 Lahore 291), Bilqis Begum and others v. Fazal Muhammad and others (1987 SCMR 1441), Khawaja Bashir Ahmad v. The Additional Settlement Commissioner, Rawalpindi and others (1991 SCMR 1604), Hafiz Noor Muhammad and others v. Ghulam Rasul and others (1999 SCMR 705), Syed Istijab Hassan and 4 others v. Member (Settlement and Rehabilitation Wing), Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore and 2 others (1999 YLR 1627-Lahore), Jamal-ud-Din v. Member, Board of Revenue and 4 others (2001 CLC 81-Lahore), Government of Punjab, Colonies Department, Lahore and others v. Muhammad Yaqoob (PLD 2002 Supreme Court 5), Pakistan Transport Company Ltd. v. Walayat Khan through Legal Heirs (2002 SCMR 1470), Sagheer Muhammad Khan and 5 others v. Member (Judicial) Board of Revenue, Punjab and 4 others (PLJ 2009 Lahore 682) and (2009 YLR 1255-Lahore), Dr. Muhammad Iqbal and 9 others v. Member, Board of Revenue/Chief Settlement Commissioner, Lahore and another (PLD 2010 Lahore 249) and Rubina Habib and others v. Province of Punjab and others (2019 CLC Note 36-Lahore).

1. As against above, by placing reliance on Shamir, through Legal Heirs v. Faiz Elahi, through Legal Heirs (1993 SCMR 145), Wali Muhammad v. Ellahi Bakhsh through LRs. and others (2005 SCMR 1526), Muhammad Sadiq (deed.) through L.Rs. and others v. Mushtaq and others (2011 SCMR 239), Bashir Ahmad Khan v. Pakistan (PLD 1997 Lahore 423), Abdur Rahman Bhatti and another v. Member (Colonies), Board of Revenue, Punjab, Lahore and another (2006 CLC 543-Lahore), the learned counsel for the Respondents No. 2 to 4 has argued that the writ petition in hand is not maintainable because the same is against an interim order passed by the Respondent No. 1. Adds that the matter pending before the Chief Settlement Commissioner is being heard in compliance with the directions of this Court passed vide order dated 26.11.2018 whereby W.P. No. 251525/2018 was disposed of with the directions to the MBR/SCS for deciding the pending matter within 30 days, hence, the MBR/CSC is under obligation to hear and decide the matter; that the petitioner challenged the above said order dated 26.11.2018 by filing petition under Section 12(2) of the Code of Civil Procedure, 1908, which was dismissed videorder dated 12.12.2018 again directing the present petitioner to participate in the proceedings pending before the MBR/CSC; that the petitioner being dissatisfied with the said order filed Intra Court Appeal No. 256558 of 2018, which was dismissed on 17.12.2018; that all the above said orders and proceedings have been concealed by the petitioner, thus, the writ petition is liable to be cancelled on this score only; that the verification committee verified the genuineness of Transfer Order when the ADC Lahore was not present in meeting, but someone else singed for ADC Lahore in attendance sheet, thus, the committee was incomplete, therefore, the forged and fabricated document cannot be verified and termed as genuine document; that the MBR/CSC is fully competent to check the record of alleged TO/PTO and to hold whether the documents are genuine or not as has been provided under the Evacuee Property and Displaced Persons (Repeal Laws) Act, 1975, therefore, no restraining order could be passed to strangulate the judicial proceedings of MBR/CSC; that under Section 2(3) of the Act, 1975 ibid the MBR/CSC is competent to proceed further according to the provisions or repeal laws related to the proceedings. Adds that under Section 23 of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958, the Chief Settlement Commissioner (CSC) is fully competent to proceed as Civil Court and the MBR/CSC is also competent to proceed as a public servant and also as a criminal Court under Sections 21, 196, 199, 200 and is empowered to proceed under Sections 193 & 228 of the Code of Criminal Procedure, 1898. Contends that jurisdiction of Civil Court is specifically barred under Section 25 of the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958, therefore, the matter pending before the CSC neither could be withdrawn nor could be entrusted to any other officer, the writ petition is liable to be rejected on this score; that all the settlement laws have been repealed due to promulgation of the Evacuee Properties and Displaced Persons (Repealed Laws) Ordinance, 1974, after the target date i.e. 01.07.1974 only the notified officer was competent to issue TO/PTO, but the alleged Transfer Order has been issued by Deputy Settlement Commissioner dated 06.11.1974, meaning thereby it is a forged and fabricated document; that under the provisions of the Act, 1958, no T.O. can be issue without verification of possession by the Settlement Department. The alleged document was issued on 06.11.1974 but the petitioner was put in possession on the basis of decree (through bailiff) dated 03.05.2017, thus, it proves that the said T.O. is a forged and fabricated document; that in compliance of order of the Hon'ble Supreme Court, the Superintendent Police inquired at the spot and submitted report staling therein that the present petitioner or his vendor never remained in possession upon the property in question; that the respondents filed application under Section 12(2) of the CPC before the Civil Court, but the same was dismissed and appeal there-against is pending before the learned Addl. District Judge; that the Respondent No. 2 purchased the land of Scheme No. 2 from LIT/ Lahore Improvement Trust through auction and his offer was accepted dated 16.01.1952 regarding purchase of land Plot Nos. 1 to 6 and portion-A and he paid the total price of the plots, the complete possession was handed over to him on 04.11.1963 through Land Acquisition Collector, so after payment of price, the Respondent No. 2 became full-fledged owner. As such, the writ petition in hand is not maintainable and same may be dismissed.

2. Heard.

3. Considering the arguments and going through the record, it is observed that a writ petition Bearing No. 251525 of 2018 titled "Safia Qayyum, etc. v. Member Board of Revenue, etc." was filed with the prayer that order of Secretary S&R dated 30.08.2016 be set aside by declaring that Settlement Department has no concern with the property of Lahore Improvement Trust; the said writ petition was disposed of on 12.12.2018 with the following observation:

4. Be that as it may, let a copy of this petition along with its annexures be transmitted to Respondent No. 1, who shall treat the same as representation on behalf of the petitioners. Needless to observe that he shall afford proper opportunity of hearing to the petitioners as well as to all concerned and then decide the same, by way of speaking order, strictly in accordance with law, within thirty days from the date of receipt of instant order. The learned law officer shall convey the order of this Court to Respondent No. 1 for its compliance. Dispose of.'

The Respondent No. 1 in the said writ petition was Member Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore. The record further reveals that the present petitioner filed a C.M. No. 03 of 2018 under Section 12(2) of the CPC against the said order, which was disposed of on 12.12.2018 with a direction to the Respondent No. 4/Additional Deputy Commissioner (Revenue), Lahore to associate the applicant in the said proceedings and then proceed accordingly in terms of order dated 26th November, 2018. The petitioner being aggrieved of the said order filed an Intra Court Appeal Bearing No. 256558/2018 but the same was dismissed.

The above picture shows that the matter has been taken up and order dated 03rd of July, 2019 has been passed by the Chief Settlement Commissioner/Member (Judicial-VIII), Board of Revenue, Punjab, in pursuance of the order dated 12.12.2018 passed by this Court. In Noor Muhammad, Lambardar v. Member (Revenue), Board of Revenue, Punjab, Lahore (2003 SCMR 708), the Hon'ble Supreme Court of Pakistan invariably held:

'It is to be noted that interlocutory order is an order in which no final verdict is pronounced but an ancillary order is passed with the intention to keep it operative till final decision.'

The nature of impugned order in the present case is also that of interim and writ petition against the same is not maintainable as has been held in Mst. Fatima Zohra and another v. Salimuddin and others (1988 MLD 605-Lahore), relevant part of which reads:

'4. After hearing the learned counsel for the parties, we are quite clear that against the interim order of the learned Settlement Commissioner dated 3-1-1978, whereby the appellants had been issued a notice on the application of the Respondent No. 1 for setting aside the ex parte order, no writ petition could be maintained. Whatever pleas the appellants may have in opposition to the application of the respondent, they can take the same before the Authority who is dealing with that application. The appeal is without merits and is accordingly dismissed with costs.’

Apart from above, in Amir Saleem v. Presiding Officer and others (PLD 2013 Lahore 607), this Court observed:

'In any case, the order is of interim in nature and as to the propriety of the impugned interim order or its correctness or otherwise in my humble view ought not to be entertained in Constitutional jurisdiction. Reliance is placed on Bolan Bank Limited v. Capricorn Enterprise (Pvt.) Ltd. 1998 SCMR 1961, Muhammad Zubair and 4 others v. Muhammad Zameer and 11 others (1999 CLC 2045) and Mst. Aysha Bibi v. District Judge 2005 CLC 894.'

Merits of the case cannot be entertained and discussed in the instant petition, because the matter is sub judice, as has been stated above, pursuant to orders of this Court and in view of the ratio of above said judgments, the writ petition in hand is not maintainable; thus, no relief as prayed for can be granted to the petitioner, as the impugned order has been passed with jurisdiction.

6. In addition to the above, the petitioner has also taken recourse to the Civil Court by filing a suit titled "Faisal Afzal v. Chief Settlement Commissioner (Residual properties/Notified Officer, Punjab, (Member Judicial-VIII), Board of Revenue Lahore, etc." for declaration with consequential relief, so any findings at this stage, may prejudice case of cither of the party, pending before the competent Court of jurisdiction and it would amount to hamper the said proceedings.

1. So far as the case law submitted by both the sides, with due respect, the same has no relevance to the peculiar matter under discussion, because it relates to merits of the case, which is not subject matter of the present petition.

2. For the foregoing reasons, the petition in hand being not maintainable stands dismissed.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 498 (DB)[Multan Bench, Multan]

Present: Abid Aziz Sheikh and Ch. Muhammad Iqbal, JJ.

MEPCO--Appellant

versus

AKAASH JIBRAEEL etc.--Respondents

I.C.A. No. 250 of 2020, heard on 10.2.2021.

Law Reforms Ordinance, 1972 (XII of 1972)--

----S. 3--Development of private housing scheme--Application for electrification of housing scheme--Demand of NOC--Writ petition--Disposal of with direction not to demand of NOC--Requirement of NOC--Challenge to--Requirement of NOC being a policy matter could not be interfered in constitutional jurisdiction. [P. ] B

Developer--

----It means a company, co-operative society, firm, or owner of land who intend to develop a scheme or has developed a scheme after approval--Appeals dismissed. [P. 502 & 504] A

1994 SCMR 782, PLD 1965 SC 725 and PLD 1971 SC 811 ref.

Ch. Saleem Akhtar Warraich, Advocate, Mr. Amer Aziz Qazi, Advocate, Mr. Sajjad Khan Malazai, Advocate, Mr. Abdul Sattar Malik, Advocate Malik Murid Hussain Mukowal, Advocate, Mr. Abdul Sattar, Advocate and Mr. Jamshed Ali Niazi, Director Legal, MEPCO for Appellant.

Rao Muhammad Iqbal, Advocate, QaziM. Waseem Abbas, Rashid Bashir Khan, Imran Ahmad Langla, Advocates for Respondents.

Mr. Bilal Amin, Advocate Ch. Muhammad Bakhsh Mangat, Advocate. M/s. Muhammad Yousaf Zubair, Advocate and Muhammad Imran Hameed Sindhu,Advocate. Mr. Muhammad Ashraf Qureshi, Advocate. M/s. Shahzad Saleem Khan Baloch, Advocate and Faisal Shahzad Awan, Advocate. Khawaja Qaiser Butt, Advocate. Rana Muhammad Azhar Iqbal, Advocate. Ch. Khalid Mahmood Arain, Advocate for Respondents.

Date of hearing: 10.2.2021.

Judgment

Abid Aziz Sheikh, J.--This consolidated judgment will also decide ICAs mentioned in Appendix A of this judgment as common question of law and facts are involved in all these appeals.

1. Relevant facts which are more or less identical in all these appeals are that respondents have developed private housing schemes and applied for electrification of said housing schemes to Multan Electric Power Company (MEPCO) (appellant). For electrification of those housing schemes, the appellant demanded "No Objection Certificate" (NOC) from the respective Development Authorities to the effect that the master plan of the society has been approved by the concerned Development Authorities. The respondent being aggrieved filed constitutional petitions which were disposed of with direction that MEPCO will not demand NOC from Multan Development Authority (MDA)/Civic or concerned Authority for the electrification of the colony. The appellant being aggrieved of said direction in various writ petitions filed these appeals.

2. Learned counsel for the appellant submits that the requirement of NOC is prescribed under WAPDA Guidelines dated 26.09.1993 and also MEPCO Office Order dated 07.11.2019. He submits that even under relevant rules, the respondents are bound to procure NOC from the Development Authorities. He submits that some of the appeals were withdrawn because the housing schemes already agreed before learned Single Bench to produce NOC from the concerned Development Authorities. He further submits that the requirement of NOC being a policy matter could not be interfered in the constitutional jurisdiction. He placed reliance on M/s Power Construction Corporation of China Ltd. Through Authorized Representative vs. Pakistan Water and Power Development Authority through Chairman WAPDA and 2 others (PLD 2017 SC 83).

3. Learned counsel for the respondents on the other hand submits that as per Policy of NEPRA dated 13.01.2021, there is no requirement of approved map or site plan or NOC by the concerned authorities for electrification. He submits that National Electric Power Regulatory Authority (NEPRA) being regulatory authority, its policy is binding on MEPCO. He further submits that the appellant has withdrawn some of the ICAs including ICA No. 90/2020 and also provided electricity to various housing societies without NOC from the development authorities, hence respondents have been discriminated. The learned counsel placed reliance on Chief Executive, GEPCO and 3 others vs. Asghar Ali Rana (2018 YLR 1391) to argue that being vested rights already accrued, the NOC cannot be demanded.

4. Arguments heard. The single moot legal question involved in all these appeals is that whether MEPCO could demand NOC from the concerned development authorities to the effect that housing society is duly approved, for the electrification of respondents housing societies. Admittedly appellant is licencee of NEPRA for distribution of electricity in the territory specified as per term and condition of licence. MEPCO is company though owned and controlled by the Federal Government but having its own Board of Directors to run and manage the affairs of the company.

5. The Board of Directors of MEPCO in its meeting held on 26.10.2019 accorded approved for implementation of revised SOPs for external electrification of housing schemes/colonies/societies and accordingly SOPs and guidelines were issued through Office Order dated 07.11.2019. For convenience, the relevant SOP is reproduced hereunder:

Documents required to be submitted by the sponsor of housing scheme opted for one point supply.

1. Approval from respective Development Authority/Town Municipal Administration/Cantonment Board/ Concerned Civic Authority. This includes:

· Approval Letter

· Approved Master plan of society with sanction letter.

The above SOP shows that for supply of electricity, the sponsor of the society is required to provide approval from the respective Development Authority including approval letter and approved master plan of the society with sanction letter. Even before appellant company was constituted, the WAPDA had similar standards and criteria for electrification of housing schemes. The said criteria is mentioned in WAPDA Officer Order dated 26.10.1993 and relevant clause is reproduced as under:

(1) The lay out plan, duly approved and signed by the concerned Department/Authority or Local Body along with letter of approval shall be supplied by the sponsor/ considtant with design documents to ensure the authenticity of approval of the competent authority.

1. It is relevant to note that beside above SOPs and criteria, in exercise of power under Section 191 of the Punjab Local Government Ordinance, 2001 (Ordinance), The Punjab Private Housing Schemes and Land Sub-Division Rules, 2010 (Rules) have been framed. Rule 30 of said Rules deals with electricity and street light plan of the society and rule 2(ix) defines Developer. For ease of reference, these provisions are reproduced hereunder:

2. Definitions:--In these rules:

(ix). "developer" means a company or a cooperative society or a firm or an owner of land who intends to develop a scheme or who has developed a scheme after approval.

1. Electricity and street light plan.--

(1) A developer shall

(a) prepare design and specifications of electricity and street light in accordance with law, rules, master plan and guidelines of Local Government responsible for approval of the same;

(b) submit, within one year of the sanction of the scheme, these design and specifications to WAPDA responsible for provision of electricity and street light for approval; and

(c) A developer shall ensure that designs are prepared by an electrical engineer registered with the Pakistan Engineering Council and approved by WAPDA responsible for provision of electricity.

(2) WAPDA shall, within twenty days, convey objections, if any, to a developer under intimation of a Town Municipal Administration, a Tehsil Municipal Administration or a Development Authority.

The plain reading of definition of word 'Developer' shows that it means a company, co-operative society, firm, or owner of land who intend to develop a scheme or has developed a scheme after approval. Under rule 30, only such developer can submit design and specification of electricity in accordance with law, rules, master plan and guidelines of Local Government responsible for approval of such scheme and submit within one year of the sanction of the scheme. Rule further provides that in case there is any objection, the WAPDA shall convey those objections to the developer under intimation to the development authority.

1. The above referred office order dated 07.11.2019 of MEPCO, Standards and Criteria of WAPDA dated 26.10.1993 and Rules, specifically provide for the approval of the respective development authority for electrification of the housing schemes. The obvious purpose of prior approval of scheme, is to protect the interest of general public and to ensure that housing schemes are duly approved before they apply for electrification and offer plots to public at large.

2. The NEPRA letter dated 13.01.2021 referred to by learned counsel for the respondents, shows that same relates to rural areas only where application is for second connection or extension of permanent/regular connection already existed or for the premises which is located inside approved housing scheme. For ready reference, the relevant part of said instructions is reproduced hereunder:

(DISCO to insert its name) in case of rural areas where map/site plan/layout plan/NOC are not applicable required.

i. There shall be no requirement of approved map or approved site plan or approved layout plan (LOP) or NOC by the Civic Agency/Authority for another connection or for extensions reduction of load where already any permanent/regular connection exists at the premises.

ii. There shall be no requirement of approved map or approved site plan or approved layout plan (LOP) or NOC by the Civil Agency/Authority for premises which are located inside approved housing scheme/societies/ plazas/multi storey buildings.

iii. There shall be no requirement of approved map or approved site plan or approved layout plan (LOP) or NOC by the Civil Agency/Authority in the areas where the land is either not acquired by the concerned Civil Agency/Authority or the area is not developed by the concerned Civil Agency/Authority.

The careful reading of above instructions of NEPRA demonstrates that these are exceptions to general rule and unless the case be covered under these exceptions, the approval of scheme and NOC is required for electrification. These instructions by NEPRA rather further support the claim of appellant, that electricity connection cannot be provided to housing societies unless they are approved and an NOC produced from the concerned Civic Agency/Authority.

1. The argument of learned counsel for the respondents that some of the ICAs have been withdrawn by MEPCO has been duly explained by the learned counsel for the appellant, that where the learned Single Benches, already directed to those societies/petitioners to obtain NOC from the Development Authority for supply of electricity, the appeals were withdrawn. Further the case of Asghar Ali Rana supra referred to by the respondents, does not relate to a housing society but same is of an individual regarding his domestic house electricity connection, therefore, said judgment is not applicable to the facts and circumstances of this case.

2. The honourable Supreme Court in Government of Sindh through the Chief Secretary and others vs. Khalil Ahmed and others (1994 SCMR 782), held that acts of public functionaries are not to be set at naught in collateral proceedings rather the Courts are under legal obligation to explore every possible explanation for their validity. The honourable Supreme Court in The Chairman, East Pakistan Railway Board, Chttagong etc. vs. Abdul Majid Sardar, Ticket Collector, Pakistan (PLD 1965 SC 725) and Lahore Improvement Trust, Lahore through its Chairman vs. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others (PLD 1971 SC 811) held that the act performed and order made by public functionaries deserve due regard by the Court and every possible explanation for their validity be explored.

3. Similarly in Zarai Taraqiati Bank Limited and others vs. Said Rehman and others (2013 SCMR 642), the honourable Supreme Court held that statutory authorities and functionaries cannot deviate or act in derogation to rules or regulations applicable. The public authorities are required to perform particular function within the frame work of law and not its derogation. The same view was also expressed in Secretary, Government of Punjab and others vs. Khalid Hussain Hamdani and 2 others (2013 SCMR 817), Muhammad Yasin vs. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), Muhammad Afsar vs. Malik Muhammad Farooq (2012 SCMR 274), Raja Mujahid Muzaffar and others vs. Federation of Pakistan and others (2012 SCMR 1651), WatanParty and another vs. Federation of Pakistan and others (PLD 2011 SC 997), Suo motu case In the matter of (Violation of Public Procurement Rules, 2004) (PLD 2011 SC 927) and Tariq Aziz ud Din and others (2010 SCMR 1301). It is also well settled that where law provides things to be done in particular manner, then it must be done in that manner and further no one has vested right in policy decision of the Authority and Courts also cannot interfere in policy matters unless they are found irrational and arbitrary by the Court.

13. The perusal of impugned orders show that without holding the relevant Rules, SOPs or instructions being unconstitutional, the appellant was directed not to demand any NOC from the Development Authorities for the electrification of the housing societies. In view of aforesaid settled propositions of law, the learned Single Judge could not direct the appellant/MEPCO not to demand NOC from the development authorities, as such direction would amount to direct the public functionaries to act in derogation of the applicable rules and policy.

1. In view of above discussion, all these appeals are allowed to the effect that appellant MEPCO may demand required documents including NOC from the concerned Development Authorities, under the applicable SOPs, Policy and Rules for the supply of electricity to the housing societies.

(Y.A.) Appeals allowed

PLJ 2021 Lahore 504

Present: Shahid Jamil Khan, J.

TARIQ MEHMOOD BUKHARI--Petitioner

versus

GOVERNMENT OF THE PUNJAB, etc.--Respondents

W.P. No. 45383 of 2020, decided on 16.3.2021.

Constitution of Pakistan, 1973--

----Art. 199--Deferment for promotion--Consist defermation--Maintainability--Direction to--In this Court's opinion, consistent deferment without giving any reasons and in absence of comparing earlier reasons cannot be called fair consideration for promotion even for a selection post--Mere use of phrase 'officer did not have a competitive advantage as compared to his other peers' is not sufficient reason, therefore, it is directed that petitioner be considered for promotion in forthcoming DPC, even if one year time of deferment is not complete--In case Board decides against petitioner, same should be done with speaking reasons, while comparing it with earlier reasons by identifying areas in which petitioner does not compete with others--Petition allowed.

[P. 506] A

M/s. Usama Malik, Ghulam Murtaza Chaudhary, Azhar Iqbal Khokhar and Syed Umair Abbas, Advocates for Petitioner.

Barrister Hassan Khalid Ranjha, Assistant Advocate General, Punjab assisted by Mr. Ahmad Hasan Shahzad, Deputy Secretary (S&GAD) for Respondents.

Date of hearing: 16.3.2021.

Order

This is second petition on the subject by the petitioner against his deferment for promotion to the post of BS-19 from BS-18. The reasons for deferment dated 21.05.2020 are reproduced hereunder:

| | | | | --- | --- | --- | | 14/14 | Mr. Tariq Mahmood Bukhari, Additional Secretary (Dev.) LG&CD Department | The Board examined the service record, posting profile, and general reputation of the officer in detail. The Board in its collective wisdom observed that the officer did not have a competitive advantage as compared to his other peers. Deferred for promotion to the post of Additional Secretary/Additional Commissioner/Deputy Commissioner and other equivalent posts (BS-19) on regular basis with the observation that his performance may be closely watched for one more year and a Special Report specifying whether the officer has achieved objectives/targets to be fixed by the Department or otherwise may be sought over and above his PER for the same period. |

Learned counsel for the petitioner submits that petitioner has been deferred thrice without giving any cogent reason under the law. In the last deferment, it is again observed that petitioner did not have any competitive advantage as compared to other peers. Learned counsel submits that in earlier round of litigation, five officers had assailed deferment of promotion and a direction was given for reconsideration of the promotion. Contends that four out of five officers have already been promoted, however, the petitioner is again deferred.

On maintainability of this petition, learned counsel submits that jurisdiction of the Punjab Service Tribunal is barred under Section 4(b) of the Punjab Service Tribunals Act, 1974 ("Act of 1974"), as the petitioner has been deferred.

1. Learned Assistant Advocate General, Punjab assisted by Mr. Ahmad Hasan Shahzad, Deputy Secretary (S&GAD) has not opposed the facts narrated above, however, submits that promotion in question is against selection post for which criteria is not seniority-cum-fitness. The aspirants are recommended fit for promotion on competitive basis and the most suitable person is promoted. Also submits that petitioner, if promoted, would be given proforma promotion from the date of promotion of his juniors.

The Deputy Secretary is confronted to show from record that each time, different reasons were given after mentioning the earlier grounds for deferment. He could not show it from the record. It is also apprised that petitioner's reports, in addition to PERs, are sought which will also be considered while considering the petitioner for promotion on completion of one year deferment time starting from 21.04.2020.

1. Heard. Record perused, 4. In this Court's opinion, consistent deferment without giving any reasons and in absence of comparing the earlier reasons cannot be called fair consideration for promotion even for a selection post. Mere use of phrase 'officer did not have a competitive advantage as compared to his other peers' is not sufficient reason, therefore, it is directed that petitioner be considered for promotion in the forthcoming DPC, even if one year time of deferment is not complete. In case the Board decides against the petitioner, the same should be done with speaking reasons, while comparing it with earlier reasons by identifying the areas in which petitioner does not compete with others.

Needless to observe that any information, not part of PERs, if used for consideration of promotion shall be supported by or under the law.

Disposed of.

(Y.A.) Petition desposed of

PLJ 2021 Lahore 507 (DB)[Multan Bench, Multan]

Present:Ch. Muhammad Iqbal and Jawad Hassan, JJ.

Sheikh TANVEER AHMAD--Appellant

versus

UNITED BANK LIMITED--Respondent

R.F.A. No. 182 of 2018, heard on 2.3.2021.

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

----Ss. 22 & 10--Suit for recovery--Decreed--Application for grant of unconditional leave--Dismissed--Banking facility--Credit card limit--Outstanding amount--Challenge to--It evinces from record that Respondent Bank had appended with suit all relevant documents which were executed between parties and that were not denied, therefore, Banking Court after appreciating grounds taken by Appellant in application under Section 10 of Ordinance as well as all documents available on record, has passed impugned judgment and decree, as such no exception can be made to it--We have considered leave to defend filed by Appellant wherein he has generally denied all allegations without any cogent reasons--Section 10(4) of Ordinance specifically states about amount of finance under Section 10(4)(a)(b)(c)(d) which he has failed to mention in his leave to defend Banking Court under Section 10 of Ordinance, after hearing parties, has option to reject leave to defend and pass judgment--We, therefore, fully agree with findings of Banking Court and do not find any illegality in impugned judgment and decree which has been passed in consonance with spirit of law, hence, does not call for interference by us--Appeal dismissed.

[P. 509] A, C & D

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

----S. 10(3)--Application for leave to defend--Application for leave to defend shall be in form of a written statement, which shall be summary of substantial questions of law and facts. [P. 509] B

Ch. Muhammad Aslam Jatt, Advocate for Appellant.

Ch. Saleem Akhtar Warraich, Advocate for Respondent-Bank.

Date of hearing: 2.3.2021.

Judgment

Jawad Hassan, J.--Through this Appeal, filed under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the "Ordinance"), the Appellant has challenged the validity of the judgment and decree dated 23.04.2018 passed by the Judge Banking Court-III, Multan (the "Banking Court") whereby the Petition for Leave to Defend was dismissed and the suit filed by the Respondent Bank was decreed.

1. Precise facts of the case are that the Respondent Bank filed a suit against the Appellant for recovery of a sum of Rs. 2,70,179.67. The Appellant appeared and filed application under Section 10 of the Ordinance for grant of unconditional leave (the "PLA") to defend the suit. The said petition for leave to appear and defend the suit was dismissed and resultantly the suit was decreed by the Banking Court vide the impugned judgment and decree to the tune of Rs. 2,70,179.67 with costs in favour of the Respondent Bank and against the Appellant. Hence, this appeal.

2. Learned counsel for the Appellant inter alia contended that the impugned judgment and decree is against the law and facts; that the Banking Court has passed the impugned judgment and decree in a hasty manner without applying its Judicial Mind; that the documents appended with the record have not been duly taken into consideration, as such there is misreading and non-reading of material available on record; that the impugned judgment and decree is sketchy in nature; that the Banking Court has failed to take into consideration the fact that application of the Appellant for grant of credit card was rejected by the Respondent Bank; that the matter required evidence by both the parties, as such the PLA should have been allowed.

3. On the other hand, learned counsel for the Respondent Bank supported the impugned judgment and decree and submitted that all the documents were executed and duly signed by the Appellant as such the impugned judgment and decree has been passed strictly in accordance with law and does not require any interference by this Court.

4. We have heard the arguments of the learned counsel for the parties and perused the record.

5. One of the contention of the Appellant is that the Banking Court has not taken into consideration that credit card limit was upto Rs. 2,00,000/- but has decreed the suit of the Respondent Bank to the tune of Rs. 2,70,179.67 as such the impugned judgment and decree is not sustainable in the eye of law. The bare examination of the record reveals that the Respondent Bank filed a suit for recovery against the Appellants in the sum of Rs. 2,70,179.67 as on 23.07.2015 on account of banking facility/credit card alongwith fee charges of 3% per month of outstanding amount coupled with late payment charges @ 10% from the date of filing of suit till realization of the amount. But the Banking Court in the impugned judgment and decree specifically observed that "the defendant deposited Rs. 2,601.36 on 28.06.2014 and on the said date, a sum of Rs. 2,70,179.67 was the balance amount outstanding against defendant". So this ground of the Appellant is not tenable hence turned down.

7. It evinces from record that the Respondent Bank had appended with the suit all the relevant documents which were executed between the parties and that were not denied, therefore, the Banking Court after appreciating the grounds taken by the Appellant in the application under Section 10 of the Ordinance as well as all the documents available on record, has passed the impugned judgment and decree, as such no exception can be made to it.

8. Moreover, the Appellant had all the opportunity to defend his case before the Banking Court under Section 10 of the Ordinance. Section 10(3) of the Ordinance clearly states that the application for leave to defend shall be in the form of a written statement, which shall be summary of the substantial questions of law and facts. Section 10(3) of the Ordinance clearly provides that leave to defend shall also be in such form which contain a summary of the substantial questions of law as well as fact in respect of which evidence needs to be recorded and it should be filed according to Section 10(4) of the Ordinance. This solid ground to defend his case was available to the Appellant having all the opportunity to file necessary documents to prove his case after recording of evidence before the Banking Court, then leave, might be granted to him. But in this case, we have considered the leave to defend filed by the Appellant wherein he has generally denied all the allegations without any cogent reasons. Section. 10(4) of the Ordinance specifically states about amount of finance under Section 10(4)(a)(b)(c)(d) which he has failed to mention in his leave to defend The Banking Court under Section 10 of the Ordinance, after hearing the parties, has the option to reject the leave to defend and pass the judgment.

9. We, therefore, fully agree with the findings of the Banking Court and do not find any illegality in the impugned judgment and decree which has been passed in consonance with the spirit of law, hence, does not call for interference by us.

1. In the above circumstances, this Appeal, being devoid of any merit, is hereby dismissed with no orders as to cost.

(Y.A.)

PLJ 2021 Lahore 510

Present: Ch. Muhammad Iqbal, J.

MASOOD RAZA GHAZI--Appellant

versus

Mst. ANWAR BEGUM--Respondent

FAO No. 29419 of 2019, heard on 26.10.2020.

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

----Ss. 96, O.V R. 17 & O.XXXVII--Suit for recovery--Ex-parte decreed--Application for setting aside ex-parte decree--Dismissed--Prescribed parameters were not followed--Challenge to--Prescribed process/procedure under Order V has not been followed by trial Court and in a hasty manner initiated ex-parte proceedings against appellant and dismissed his application for setting aside ex-parte judgment & decree which order of trial Court is patently illegal and against parameters prescribed under Order V, CPC--Appeal allowed. [P. 512] C

2002 SCMR 664 and 2005 SCMR 1877 ref.

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

----O.XXXVII, Rr. 1 & 2--Special procedure for notice--A special procedure of notice has been prescribed in Form No. 4 in Appendix 'B' CPC but there is neither any notice ever issued for service of appellant nor any service was effected nor any affixation was made as prescribed under law. [P. 512] A

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

----O.V, R. 17--Refusal to acceptance of notice--I f defendant refused to accept notice or cannot receive notice, Process Server shall affix copy of notice on door of defendant in presence of witnesses.

[P. 512] B

Adjudication of cases--

----Courts always lean in favour of adjudication of cases on merits rather to stifle rights of people mere on technicalities. [P. 513] D

1968 SCMR 817 and PLD 1985 SC 345 ref.

M/s. Malik Azhar Iqbal Khokhar and Muhammad Imran Ashfaq Chaudhary, Advocates for Appellant.

M/s. Jawad Jameel Malik and Moeen Ahmad Siddiqui, Advocates for Respondent.

Date of hearing: 26.10.2020.

Judgment

Through this First Appeal against Order, the appellant has challenged the vires of order 09.04.2019 passed by the learned Additional District Judge, Okara whereby application for setting aside ex-parte judgment and decree dated 25.10.2017 filed by the appellant was dismissed.

1. Brief facts of the case are that the respondent/plaintiff filed Suit for recovery of Rs. 50,00,000/- under Order XXXVII, CPC on the basis of pronote dated 05.01.2016 against the appellant/defendant which was decreed by the learned Additional District Judge, Okara vide ex-parte judgment and decree dated 25.10.2017. Against the said judgment and decree, the appellant filed application for setting aside ex-parte judgment and decree on 13.08.2018 along-with petition for leave to appear and defend the suit. The application for setting aside ex-parte judgment and decree was dismissed by the learned trial Court vide order dated 09.04.2019. Hence, this appeal.

2. I have heard the arguments advanced by the learned counsels for both the parties and gone through the record with their able assistance.

3. The respondent filed suit for recovery of Rs. 50,00,000/- under Order XXXVII, CPC on the basis of pronote dated 05.01.2016 against the appellant. On 21.10.2016, notices were issued through registered envelope AD and Courier Service for 29.10.2016 and on the said date, the summons were not received back served or un-served and again the case was adjourned for the service of the appellant through registered envelope AD for 7.11.2016. On 7.11.2016, again no summon was received back served or un-served and again notice was ordered to issue for the service of the appellant through registered post AD and Courier Service as well as affixation of Court fee for 18.11.2016. On 18.11.2016, notices have not been received back and the case was adjourned for 28.11.2016 for the service of appellant through registered post AD and Courier Service. On 28.11.2016 again the case was adjourned for 17.12.2016 on the ground that notice was not received back served or un-served. On 17.12.2016, again summon was not received back and case was adjourned for 07.01.2017. On 07.01.2017, the learned trial Court observed that summons were not received back however receipt of TCS is submitted on which address was given as 16-E whereas the actual address which was given in the suit is 166-E and reference number on the receipt is invalid number hence the same is discarded. Again summons were issued under Order XXVII in the name of the appellant through registered post AD and Courier Service for 20.01.2017. On 20.01.2017, in compliance of order of the learned District and Sessions Judge, Okara the case was transferred to the Court of Mr. Muhammad Ramzan, the learned Additional District Judge, for the same date and on 20.01.2017, the learned transferee Court observed that notice was not received back served or un-served and adjourned the case for the same process for 30.01.2017. On 30.01.2017, order for substitute service of the appellant through publication in the newspaper was passed and after publication, the ex-parte proceedings were initiated against the appellant on 9.2.2017 whereafter ex-parte evidence was recorded and ex-parte judgment and decree was passed on 25.10.2017. In suit under Order XXXVII Rules 1 & 2, CPC a special procedure of notice has been prescribed in Form No. 4 in Appendix 'B' CPC but there is neither any notice ever issued for the service of the appellant nor any service was effected nor any affixation was made as prescribed under the law.

5. Under Order V, Rule 17, C.P.C. if the defendant refused to accept the notice or cannot receive the notice, the Process Server shall affix copy of the notice on the door of the defendant in the presence of the witnesses and under Rule 18, the serving officer in all cases in which summons have been served under Rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served and under Rule 19, if the summons returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath and thereafter under Rule 20 process for the substitute service is to be adopted. But in this case the prescribed process/procedure under Order V has not been followed by the learned trial Court and in a hasty manner initiated ex-parte proceedings against the appellant and dismissed his application for setting aside ex-parte judgment and decree which order of the learned trial Court is patently illegal and against the parameters prescribed under Order V, CPC as well as against the dictum laid down by the Hon'ble Supreme Court of Pakistan in the cases titled as Ahmed Khan v. Haji Muhammad Passim and others (2002 SCMR 664) and Nouroz Khan v. Haji Padoor (2005 SCMR 1877).

1. Furthermore procedure of service of summon is intended to secure the proper administration and dispensation of justice to extend

a fair chance of hearing to the parties as described in Art. 10-A of the Constitution of Islamic Republic of Pakistan, 1973 and nobody should be condemned unheard. The Courts always lean in favour of adjudication of cases on merits rather to stifle the rights of the people mere on technicalities. Reliance is placed on the cases titled as Municipal Committee, Rawalpindi through the Secretary, Municipal Committee, Rawalpindi v. Raja Muhammad Sanvar Khan (1968 SCMR 817) and Mst. Ghulam Bibi & Others vs. Sarsa Khan & others (PLD 1985 SC 345).

1. In view of above, this FAO is allowed. Order 09.04.2019 passed by the learned Additional District Judge, Okara is set aside and application for setting aside ex-parte judgment and decree dated 25.10.2017 filed by the appellant is accepted and the learned trial Court is directed to decide the application for leave to appear and defend the suit of the appellant on merits.

(Y.A.) Appeal allowed

PLJ 2021 Lahore 513

Present: Asjad Javaid Ghural, J.

Ch. FARRUKH SAEED CHEENA--Petitioner

versus

DEPUTY COMMISSIONER SHEIKHUPURA, etc.--Respondents

W.P. No. 11212 of 2021, decided on 1.3.2021.

PunjabMaintenance of Public Order Ordinance, 1960 XXXI of 1960)--

----S. 3(1)--Constitution of Pakistan, 1973, Arts. 2, 3, 4, 9, 12(1)(b), 14, 18 & 19--Detention order--Ailing condition--Freedom and liberty of citizen--Violation of fundament rights--Registration of criminal cases--Challenge to--Freedom and liberty of a citizen is a fundamental right guaranteed under Article 4 and Article 19 of Constitution of Islamic Republic of Pakistan, 1973 and its infringement tantamount to violation of fundamental rights enshrined under Article 2-A, 3, 4, 9, 14 and 18 of Constitution--When a person is detained without any just cause, it amounts to violation of his fundamental rights, then he may invoke jurisdiction of this Court directly under Article 199 of Constitution, if order is illegal--No material prejudicial to public peace and tranquility which is a sina qua non for issuance of detention order has been brought on record--Mere registration of criminal cases against detainee is no ground to curtail his liberty, in particular, when admittedly he was not convicted even in a single case till date--Moreover, all criminal cases registered against detainee are subjudice, before Courts of competent jurisdiction, as such his detention under some other law on basis of said cases tantamounts to double jeopardy, which is violative of Article 12(1)(b) of Constitution--Petition allowed. [Pp. 515, 516] A, B & C

1999 PCr.LJ 20, 1994 SCMR 1532, PLD 2010 Lah. 484 ref.

Mr. Munir Hussain Bhatti, Advocate for Petitioner.

Mr. Jaam Khalid Farid, A.A.G. for Respondents.

Date of Hearing: 1.3.2021.

Order

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Ch. Farrukh Saeed has questioned the legality and validity of impugned order dated 29.01.2021 passed by Deputy Commissioner, Sheikhupura, whereby his father namely Saeed Ahmad hereinafter shall be called as detainee) was ordered to be arrested and detained for a period of thirty-days with immediate effect.

1. Learned counsel for the petitioner contends that the impugned order for the detention of detainee under sub-section (1) of Section 3 of the Punjab Maintenance of Public Order (Ordinance), 1960 is against facts and law; that no material existed with Respondent No. 1 to justify detention of the detainee; that the detainee is a law abiding citizen; that the detainee is an old man with ailing condition as such he is not in a position to provoke the community in any manner whatsoever; that liberty of a citizen is an inalienable right enshrined under the Constitution and the same cannot be curtailed merely at the whims of executive; that the impugned detention order is nullity in the eye of law and is liable to be set-aside.

2. On the other hand, learned Law Officer has submitted that under sub-section (3) of Section 6 of (Ordinance) ibid the petitioner has alternate remedy of filing an appeal before the Home Secretary, Government of Punjab, as such this writ petition is not maintainable; that eleven criminal cases of various nature stand registered against the detainee and he was also indulged in provacting the general public to take the law in hand; that the impugned order was passed on the recommendations of District Intelligence Committee, which needs no intervention by this Court in its Constitutional jurisdictions.

3. I have heard learned counsel for the petitioner as well as learned Law Officer and gone through the available record.

5. First of all I would like to dilate upon the objection of learned Law Officerqua maintainability of instant writ petition. Freedom and liberty of a citizen is a fundamental right guaranteed under Article 4 and Article 19 of the Constitution of Islamic Republic of Pakistan, 1973 and its infringement tantamount to violation of fundamental rights enshrined under Article 2-A, 3, 4, 9, 14 and 18 of the Constitution. When a person is detained without any just cause, it amounts to violation of his fundamental rights, then he may invoke the jurisdiction of this Court directly under Article 199 of the Constitution, if order is illegal without having course to alternate remedy. Reliance is placed on case reported as Abdul Latif Shamshad Ahmad v. District Magistrate, Kasur (1999 PCr.LJ 20) wherein it has been observed as under:

“At the very outset I would express that before the filing of this writ petition, the making of the representation or preference of appeal before the Secretary Home Department Government of the Punjab is not necessary. It has been held in Maulana Shah Ahmad Noorani v. Government of the Punjab PLD 1984 Lah.222 and Azad Papers (Jasarat) v. Province of Sindh and others PLD 1974 Kar. 81 that availability of alternate remedy of making representation to the Provincial Government against the impugned order does not oust and eclipse the jurisdiction of the Constitutional Court in exercise of its writ jurisdiction in a matter of instant nature.”

Reference may also be made to the cases reported as “Mst. Sana Jamil v. Government of the Punjab through Secretary and 5 others (2016 P Cr LJ 424) and “Syed Mubbashar Raza v. Government of Punjab through Secretary Home Department and 2 others (PLD 2015 Lahore 20). Thus, the objection of learned Law Officer qua maintainability of this writ petition is repelled.

6. Now coming to the merits of the case. The report and parawise comments furnished by Respondent No. 1 demonstrate that the detainee is foxhole of criminals and is a sign of fear and terror in the area and he at a number of times instigated general public to take the law into their hands. While forming this opinion no other material except registration of eleven criminal cases against the detainee was placed on record. No material prejudicial to the public peace and tranquility which is a sina qua non for issuance of detention order has been brought on record. The Hon’ble apex Court in the case reported as Mrs. Arshad Ali Khan vs. Government of Punjab through Secretary Home” (1994 SCMR 1532) has observed as under:

“The word ‘public order’ is accordingly referable to public order of local significance as distinguished from material up heavals such as revolution, civil strife and war. Equally it is distinguishable from the popular concept of law and order of security of State. Law and order represents the largest circle, within which is the next circle representing public order and smallest circle represents security of the State. Hence an activity which affects law and order may not necessarily affect public order and an activity which may not necessarily affect security of the State.

From the above-stated legal position, it is quite clear that before an act is held to be prejudicial to public order, it may be shown that the act or activity is likely to affect the public at large. As a corollary, therefore, it follows that an act which concerns only to an individual and does not amount to an activity prejudicial to the public peace and tranquility cannot fall within the ambit of section 3 of the Ordinance.”

7. Even otherwise, mere registration of criminal cases against the detainee is no ground to curtail his liberty, in particular, when admittedly he was not convicted even in a single case till date. Moreover, all the criminal cases registered against the detainee are subjudice, before the Courts of competent jurisdiction, as such his detention under some other law on the basis of said cases tantamounts to double jeopardy, which is violative of Article 12(1)(b) of the Constitution. Reliance is placed on case reported as “Abdul Rasheed Bhatti vs. Government of Punjab” (PLD 2010 Lahore 484) wherein it has been laid down as under:

“So far as the material/reports forming the basis of passing the impugned detention order are concerned, the same show that Certain criminal cases have been registered against the petitioner and the petitioner is involved in the criminal cases. It is pertinent to mention here that out of the seven criminal cases the petitioner has been granted bail in two cases registered vide F.I.Rs. No. 435/2006 and 148/2008 at Police Station Faisal Town and Town Ship respectively, therefore, the petitioners alleged criminal activity, was already a subject matter of various criminal cases and on the same allegations his detention was not justified in law, as this amounts to vexing the petitioner twice.”

1. For what has been discussed above, instant writ petition is allowed as a result whereof impugned order of Respondent No. 1 dated 29.01.2021 is hereby set-aside. The detainee namely Ch. Saeed Ahmad is directed to be set at liberty forthwith if not required in any other case.

(Y.A.) Petition allowed

PLJ 2021 Lahore 517

Present: Ch. Muhammad Iqbal, J.

MUHAMMAD YOUSAF--Petitioner

versus

ALLAH DITTA--Respondent

C.R. No. 26126 of 2017, decided on 29.9.2020.

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

----S. 115--Specific Relief Act, (I of 1877), S. 9--Suit for possession--Decreed--Appeal--Dismissed--Purchasing of land--Non-producing of document by petitioner in rebuttal of ownership of respondent--Concurrent findings--Challenge to--Revenue record (Ex.Pl) shows ownership of respondent over suit property but in rebuttal no document is produced by petitioner--Petitioner did not challenge title of respondent before any forum till to-date--When as per revenue record as well as admission of petitioner that R respondent is owner of suit property as such possession of petitioner would be that of permissive in nature and mere assertion that he constructed house from his own sources as far as 25 years back is not sustainable claim to declare him as owner of suit property--As such, Courts below rightly passed impugned judgments & decrees and no illegality has been committed--Counsel for petitioner has not been able to point out any illegality or material irregularity in impugned judgments & decrees passed by Courts below and has also not identified any jurisdictional defect--Concurrent findings of fact are against petitioner which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction--Revision petition dismissed. [Pp. 518 & 519] A, B & C

2014 SCMR 1469 ref.

Mr. Sajjad Hussain Tarar, Advocate for Petitioner.

Mr. Mehboob Rasool Awan, Advocate for Respondent.

Date of hearing: 29.9.2020.

Order

Through this civil revision, the petitioner has challenged the legality of judgment & decree dated 22.06.2016 passed by the learned Civil Judge, Malakwal whereby suit for recovery of possession through ejectment filed by the respondent was decreed and judgment & decree dated 10.04.2017 passed by the learned Additional District Judge, Malakwal who dismissed the appeal of the petitioner.

1. Brief facts of the case as contained in the plaint are that the respondent/plaintiff purchased land measuring 12-Marlas from Allah Ditta situated at Mouza Rukkan and raised construction on the said plot. Muhammad Yousaf, petitioner/defendant who is his real brother being homeless requested for lending M him house for living. The respondent/plaintiff gave him house measuring 6 Marlas comprising of Khewat No. 889 Khatooni No. 2614 situated at Mouza Rukkan for temporary residence. He requires the petitioner to vacate the house and deliver the possession to him. On petitioner/defendant gainsayal, hence the suit under Section 8 of the Specific Relief Act, 1877. Petitioner filed contesting written statement. Issues were framed and evidence was recorded. The learned trial Court vide judgment & decree dated 16.10.2015 decreed the suit filed by the respondent. The petitioner filed appeal which was accepted by the learned Additional District Judge, Malakwal vide judgment & decree dated 16.01.2016 and remanded the matter to the learned trial Court to frame the additional issue and decide the case afresh. In post remand proceedings, the learned trial Court again decreed the suit of the respondent vide judgment & decree dated 22.06.2016. The appeal of the petitioner was dismissed by the learned appellate Court vide judgment & decree dated 10.04.2017. Hence, this civil revision.

2. I have heard the arguments advanced by the learned counsel for the petitioner and gone through the record with his able assistance.

4. Admittedly, the petitioner/defendant and respondent/ plaintiff are real brothers. The Revenue record (Ex.Pl) shows the ownership of the respondent over the suit property but in rebuttal no document is produced by the petitioner. When question confronted to the learned counsel whether any title of the suit property exists in the name of the petitioner he admitted non-existence of any title in the name pf the petitioner rather unequivocally admitted the ownership of the respondent over the suit property. Petitioner did not challenge the title of the respondent before any forum till to-date. When as per the revenue record as well as the admission of the petitioner that the respondent is owner of the suit property as such possession of the petitioner would be that of permissive in nature and mere assertion

that he constructed the house from his own sources as far as 25 years back is not sustainable claim to declare him as owner of the suit property. As such, the learned Courts below rightly passed the impugned judgments & decrees and no illegality has been committed.

5. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned judgments & decrees passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of fact are against the petitioner which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case titled as Mst. Zaitoon Begum vs. Nazar Hitssain & Another (2014 SCMR 1469).

1. In view of above, this civil revision is dismissed being devoid of any force with no order as to costs.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 519

Present: Shahid Karim, J.

TARIQ HAMEED and 4 others--Petitioners

versus

LAHORE DEVELOPMENT AUTHORITY and others--Respondents

W.P. No. 22182 of 2017, decided on 14.10.2020.

Constitution of Pakistan, 1973--

----Art. 199--Application for transfer of plots--Refusal to transfer of plots--Writ petition--Allowed--Matter was referred to D.G. LDA--Offending of directions issued by High Court--Dereliction of duty--Unbridled power of D.G. LDA--Direction to--Two orders are exactly same verbatim--Therefore, D.G in present case has merely reproduced entire order of 08.07.2015 without adding or subtracting any word--This is a gross dereliction of duty on part of D.G LDA and also offends directions issued by this Court for deciding matter through a speaking order after hearing parties made on 15.03.2016 in W.P No--14616 of 2014--This ground is sufficient for impugned order to be set aside without more--Order passed by D.G LDA has no source in law and merely on application of petitioners seeking transfer of plots in their names, has D.G proceeded to pass order without adverting to historical facts of case--Impugned order passed by D.G LDA has serious consequences--Not only that it has no basis in law and D.G has not relied upon any provision of law which entitled him to undertake act of remanding cancellation of these plots in name of petitioners--Without a proper power vesting in D.G LDA by a statute, it is incredulous to urge that D.G would have such enormous and unbridled power to set aside rights which have been concluded and made to vest in petitioners--Entire controversy hinges on jurisdiction assumed by D.G LDA who set at naught concluded rights and does not involve any factual controversy--LDA does not dispute entire gemut of facts brought forth on record by petitioners--More importantly, LDA has never taken any steps to proceed to cancel plots in question--Any action which was initiated ever by officials of LDA was on application filed by petitioners (or other similarly placed persons) raising their grievance regarding inaction on part of LDA to transfer plots in their names--To this day, LDA has not taken any steps on its own and has merely slept over issue to detriment of petitioners--Petition allowed.

[Pp. 521, 522 & 523] A, B, C, D & E

Mr. Muhammad Shahzad Shaukat, Advocate for Petitioners.

Sahibzada Muzaffar Ali, Advodcate for Respondents.

Date of hearing: 14.10.2020.

Judgment

This constitutional petition lays a challenge to the order dated 15.04.2017 passed by the Director General, Lahore Development Authority (LDA). In conclusion, the D.G LDA held that:

“On the basis of above narrated facts the undersigned has come to the conclusion that the request of the petitioner for transfer of plot no. 26 and 27, block-P, M.A Johar Town Scheme is not tenable under the law. In view thereof, the Directorate of Land Development-I shall proceed further regarding the cancellation of these plots as the fate of adjustment has already been decided through Speaking Order passed vie No. LDA/DLD-I/ADL/ 7331 dated 8.7.2015."

1. As is evident from the above, the issue which is the subject matter of this petition are Plots No. 26 and 27, Block P, M.A Johar Town Scheme, Lahore. By the impugned order, the D.G LDA refused to transfer, the said plots in the names of the petitioners and directed the Directorate of Land Development to proceed regarding the cancellation of these plots, as according to the D.G, the fate of adjustment had been decided by the order dated 08.07.2015. Suffice to say that the order on which reliance has been placed was passed in respect of another claimant Irfan Siddiq and that too on a constitutional petition filed by him in which the matter was referred to the D.G for deciding on the application of the petitioners in that case. Therefore, the order was passed on a separate application and in respect of a distinct applicant and not in the case of the petitioners in the instant constitutional petition.

3. A juxtaposition of the order dated 08.07.2015 and the impugned order herein makes it evident that the two orders are exactly the same verbatim. Therefore, the D.G in the present case has merely reproduced the entire order of 08.07.2015 without adding or subtracting any word. This is a gross dereliction of duty on the part of D.G LDA and also offends the directions issued by this Court for deciding the matter through a speaking order after hearing the parties made on 15.03.2016 in W.P No. 14616 of 2014. This ground is sufficient for the impugned order to be set aside without more.

4. However, the impugned order passed by the D.G LDA has no source in law and merely on the application of the petitioners seeking the transfer of the plots in their names, has the D.G proceeded to pass the order without adverting to the historical facts of the case. Not only that the earlier order dated 8.7.2015 has been reproduced as explicated, the reliance in both these orders is on an inquiry conducted by Addl. D.G (H) LDA. No reference to the orders of competent authority requiring the Addl. D.G, LDA to conduct any inquiry have been referred in the impugned order. Thereafter, the officer to whom the inquiry was entrusted, proceeded to decide certain factual aspects of the case. In most part, the conclusion of the inquiry rested upon the misdemeanor and alleged unlawful actions on the part of the officers of LDA. To a question, learned counsel for LDA denied that any actions in respect of those officers had been initiated or concluded. Moreover, the D.G in his order has sought to premise the action on the basis of the two clauses of the exemption letter reproduced as under:

“(7) That if at any stage, your title is proved to be defective or is discovered that the exemption has been procured fraudulently the allocation of the plot shall stand automatically withdrawn."

(17) That if at any stage your title is proved to be defective, the exemption of the plot shall stand automatically withdrawn and LDA will be entitled to take over the land along with structure standing thereon without payment or any damage or compensation.“

1. These clauses are standard terms of an exemption letter. However, the counsel for LDA admitted that this is not a case of exemption but of adjustment and which has borne from the adjustment letter dated 16.04.2012. At best, the D.G should have relied upon condition 17 of the adjustment letter which has been brought forth above and which merely gives powers to the relevant officer of LDA to cancel the exemption of the plot if at any stage the title is proved to be defective which is not the case here.

2. To reiterate, the subject matter of this petition relates to an area of 2K-2M. This was subject matter of the award made by the Land Acquisition Collector of LDA on 29.03.2012. With regard to the rest of the 6K-9M of the entire 8K-1M is not in dispute in this petition. That chunk of land has also been adjusted in favour of the petitioners. The documents and other material placed on record and undisputed by LDA clearly show that on 17.8.1981 possession proceedings took place in respect of inter alia Khasra Nos. 13566, 13576 and 13586. It is clearly mentioned in the possession proceedings that symbolic possession had been taken by LDA and this was owing to the fact that these khasras have been mentioned as having Abadi and houses. The petitioners have also attached as Annexure ‘K’ the report of LDA officials which clearly mentions in respect of Khasra Nos. in question that large residential units and one small residential unit stands constructed on these khasras and the site plan of the land in question has also been attached with the report dated 17.02.2012. This document too has not been denied by LDA. After the acquisition proceedings, the award was announced on 29.03.2012 by the Land Acquisition Collector. Pursuant to this document, the entitlement to adjustment under the award of the petitioners stood crystallized. Thereafter on 16.4.2012 the adjustment certificate was issued in the name of the petitioners. Therefore, from the documents of LDA itself, it can be gleaned that the entire proceedings were conducted by the officials of LDA and secondly not one but a number of officials were involved in the entire proceedings. None of these officials has been proceeded against pursuant to an alleged inquiry held at a subsequent time and on which the entire reliance has been placed in the impugned order.

7. Apart from the above, the impugned order passed by D.G LDA has serious consequences. Not only that it has no basis in law and the D.G has not relied upon any provision of law which entitled him to undertake the act of remanding the cancellation of these plots in the name of the petitioners. Also it has the affection of setting aside a lawfully executed adjustment letter in respect of the plots in favour of the petitioners as also amending the award issued by the Land Acquisition Collector. Without a proper power vesting in the D.G LDA by a statute, it is incredulous to urge that D.G would have such

enormous and unbridled power to set aside rights which have been concluded and made to vest in the petitioners.

8. The learned counsel for LDA argued that the instant case entails resolution of disputed facts and ought to be resolved by Courts of plenary jurisdiction. This is a fallacious argument, in that, the entire controversy hinges on the jurisdiction assumed by D.G LDA who set at naught concluded rights and does not involve any factual controversy. LDA does not dispute the entire gemut of facts brought forth on record by the petitioners. More importantly, LDA has never taken any steps to proceed to cancel the plots in question. Any action which was initiated ever by the officials of LDA was on the application filed by the petitioners (or other similarly placed persons) raising their grievance regarding inaction on the part of LDA to transfer the plots in their names. To this day, LDA has not taken any steps on its own and has merely slept over the issue to the detriment of the petitioners.

1. In view of the above, this petition is allowed. The impugned order dated 15.4.2017 passed by D.G LDA is hereby set aside. As a consequence, LDA is directed proceed to transfer the plots, subject matter of this petition, in the names of the petitioners within a period of one month from the receipt of the order of this Court.

(Y.A.) Petition allowed

PLJ 2021 Lahore 523

Present: Ch. Muhammad Masood Jahangir, J.

Syeda TAHIRA BEGUM, etc.--Petitioners

versus

Malik KHALID PERVAIZ, etc.--Respondents

W.P. No. 40998 of 2017, decided on 25.2.2021.

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

----S. 12--Civil Procedure Code, (V of 1908), S. 12(2) & O.I, R. 8--Constitution of Pakistan, 1973, Art. 199--Suit for specific performance--Application for impleadment in group of defendants--Allowed--Ex-parte decreed--Application for setting aside ex-parte decree--Dismissed--Revision petition--Concurrent findings--Stance of petitioners--Presumption of correctness--Challenge to--Stance of petitioners that they did not file application for their impleadment was not appealable to a prudent man--There was no fun for Respondent No. 1 to initiate any such move so that his case could be contested by an additional party--It is absolute rule that judicial proceedings bear strong presumption of correctness and cannot be taken away easily for mere bald assertion--Had it been fake, collusive move to be added in suit planted on behalf of Respondent No. 1 petitioners/might have initiated some proceedings against latter or at least against counsel, who represented them, but admittedly such remedy was never availed at any forum--Real drastic aspect of petitioners’ case was that they had purchased subject property during pendency of ongoing suit inter se Respondents No. 1 & 2--Third party, who acquires any interest or right in property under litigation, even for value or through an exchange of value or without notice of pendency of lis shall be bound by its result stricto sensu in all respects alike his transferor--It is well established by now that subsequent transferee, therefore, does not acquire any independent legal title, but he has to swim and sink with his transferor--Normally only application u/S. 12(2), which calls for factual inquiry, in appropriate cases, should follow regular trial, but it cannot be applied as a universal principle--Where an application, if on face of it, is found to be frivolous/vexatious or in facts & circumstances of case and Court reaches opinion that filing thereof was with ulterior motive or mala fide, then rival party/beneficiary must not be compelled to face another round of litigation, otherwise there will be no end of litigation--Lower fora was quite justified to knock out petitioners on valid reasons--Petitioners’ counsel though argued case to best of his ability while availing maximum time, but failed to persuade that either verdicts under attack are coram non judice/ultra vires or suffering from jurisdictional defect to call for interference--Petition dismissed. [Pp. 525, 526, 527 & 527] A, B, C, D, E & F

2015 SCMR 1081, PLD 2016 SC 1773, 2006 SCMR 1530, 2020 CLC Note 19, 2008 YLR 119, 2009 SCMR 40.

Rao Tariq Mehmood, Advocate for Petitioners.

Mr. Muhammad Mehmood Ch. & Azhar Siddique Advocates for Respondent No. 1

Date of Hearing: 25.2.2021.

Judgment

The unanimous orders dated 07.04.2017 & 23.05.2017 of the two Courts below are the subject of petition in hand, whereby not only application under Section 12(2) of the Code, 1908 for setting aside of decree dated 08.10.2009 of the present petitioners, but also their Revision Petition dismissed.

1. Arguments heard and record scanned with the able assistance of worthy counsel for the parties.

2. The available record suggests that Jewan Abbas, Respondent No. 2 was exclusive owner of the subject area. He on 24.05.2001 was sued by Malik Khalid Pervaiz, Respondent No. 1 through suit for specific performance of contract dated 23.05.2001 asserting that the former had, settled transaction of sale with him, therefore prayed for grant of decree for is enforcement. During its proceedings an application u/o. I rule 8 of the Code ibid on behalf of present petitioners was filed for their impleadment in the group of defendants pleading that they had purchased the suit area vide oral sale mutations No. 210 & 230 dated 09.01.2006 as well as 30.06.2006 respectively, therefore, they were added, however, on their part, the suit was not diligently pursued, rather they were proceeded against ex-parte and ultimately the suit of Respondent No. 1 decreed on 07.10.2009. The petitioners soon thereafter on 10.11.2009 preferred application u/s. 12(2) before the same Court for setting aside of ex-parte decree, which on behalf of Respondent No. 2 or any other contestant(s) was never assailed. In their said application, the stance of the petitioners was that they had never applied for their impleadment in the suit for specific performance of contract, rather on their behalf, forged/fictitious application as well as written statement while practicing impersonation was managed by the plaintiff/ Respondent No. 1 on the suit file, so as to defeat their (petitioners) sale matured in their favour through attestation of afore-noted mutations. The stance of the petitioners was refuted by the decree holder/ Respondent No. 1 vide his reply, pleading that the formers by engaging a counsel submitted application for their impleadment, which was allowed and thereafter they joined the trial proceedings through submission of contesting written statement, that due to their non-appearance, they were proceeded against ex-parte and after issuance of decree, the application u/S. 12(2) was filed with false & concocted stance. Having considered the pleadings, the Courts below passed adverse unanimous order duly disclosed, in para 1 ante, therefore, this petition by the bootless petitioners.

3. Arguments heard, record consulted.

4. The stance of the petitioners that they did not file the application for their impleadment was not appealable to a prudent man. There was no fun for Respondent No. 1 to initiate any such move so that his case could be contested by an additional party. It is absolute rule that judicial proceedings bear strong presumption of correctness and cannot be taken away easily for mere bald assertion. Had it been fake, collusive move to be added in the suit planted on behalf of Respondent No. 1 the petitioners/might have initiated some proceedings against the latter or at least against counsel, who represented them, but admittedly such remedy was never availed at any forum.

5. The real drastic aspect of the petitioners’ case was that they had purchased the subject property during the pendency of the ongoing suit inter se Respondents No. 1 & 2, so the proposition in hand to that effect, is covered by section 52 of the Transfer of Property Act, 1882, which reads as under:

1. Transfer of property pending suit relating thereto.--During the pendency in any Court having authority in Pakistan, or established beyond the limits of Pakistan by the Federal Government, of any Suit or proceeding which is not collusive and in which any right to immovable property is directly and Specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

Explanation.--For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction of discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution there of by any law for the time being in force.

The ambit & import of the aforesaid provision is to protect/safeguard the parties to the litigation as well as their rights and interest qua the immovable property involved therein against any alienation made by either of the parties during its pendency in favour of a third person, who shall acquire title of the said property subject to the final decision of the litigation. In such circumstances, the third party, who acquires any interest or right in the property under litigation, even for value or through an exchange of value or without notice of the pendency of the lis shall be bound by its result stricto sensu in all respects alike his transferor. It is well established by now that subsequent transferee, therefore, does not acquire any independent legal title, but he has to swim and sink with his transferor. The theory involved herein has already been clinched by the apex Court in its esteemed judgments cited as Industrial Development Bank of Pakistan through Deputy Chief Manager vs. Saadi Asmatullah and others (1999 SCMR 2874), Muhammad Ashraf Butt and others vs. Muhammad Asif Bhatti and others (PLD 2011 S.C 905), Mst. Tabassum Shaheen vs. Mst. Uzma Rahat and others (2012 SCMR_983) & Syed Hussain Naqvi and others vs. Mst. Begum Zakara Chatha through LRs and others (2015 SCMR 1081). Relevant portion of the second last judgment, for ready reference, is reproduced as under:

“Principle of lis pendens unambiguously prescribes that the rights of the party to the suit, who ultimately succeeds in the matter are not affected in ‘any manner whatsoever on account of the alienation, and the transfer of the property shall acquire the title to the property subject to the final outcome of the lis. In view of the rule/doctrine of lis pendens, a transferee of the suit property, even if a bona fide purchaser, without notice of the pendency of suit, shall be bound by the result of the suit stricto sensu in all respects, as his transferor would be bound. 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.”

This view has further been approved by the same Court in a recent case reported as Aasia Jabeen and 3 others vs. Liaqat Ali and others (PLD 2016 SC1773).

6. The emphasis of Mr. Rao, learned counsel for the petitioners while relying upon judgments reported as Lahore Development Authority through Director General vs. Arif Manzoor Oureshi and others (2006 SCMR 1530) & Hazoor Muhammad vs. Raqia Begum (deceased) through LRs (2020 CLC Note 19) that assertion so raised by his clients involved factual controversy revolving around elements of fraud, collusiveness or impersonation could only be decided through settlement of issues and requiring evidence of the parties, but the learned Courts below committed material irregularity/patent illegality in defeating them summarily, therefore, impugned orders are liable to be reversed, is not well-founded. Normally only application u/S. 12(2), which calls for factual inquiry, in appropriate cases, should follow regular trial, but it cannot be applied as a universal principle. Where an application, if on the face of it, is found to be frivolous/vexatious or in the facts & circumstances of the case and the Court reaches the opinion that filing thereof was with ulterior motive or mala fide, then the rival party/beneficiary must not be compelled to face another round of litigation, otherwise there will be no end of litigation. This Court while dealing with similar question in judgment reported as Mst. Shahida Hakim through General Attorney vs. Tanveer Ahmad Khan through General Attorney and others (2008 YLR 119) has already held in the following manner:

1. So far as the grievance about non-framing of issues and non-availability of opportunity to produce evidence is concerned, suffice it to observe that there is no ride of absolute nature that in all applications under section 12(2) of the Code of Civil Procedure, 1908 the Court must necessarily frame issues and record evidence. In Mrs. Amina Bibi through General Attorney v. Nasrullah and others (2000 SCMR 296) it was observed that while dealing with the allegations, under Section 12(2) C.P.C. it is not incumbent upon the Court that it must, in all circumstances, frame issues, record evidence and follow the procedure prescribed for decision of the suit as held in Amiran v. Muhammad Ramzan (1999 SCMR 1334). In the instant case, we have gone through the application under section 12(2), C.P.C., moved by the petitioner and the material available on record. In view of the facts and circumstances of the case and the judicial orders passed up to this Court during the protracted litigation, the application filed by the petitioner u/S. 12(2), C.P.C, was, liable to be dismissed without formulating issues and recording evidence of parties”. Similar was the view taken in Mst. Nasira Khatoon and another v. Mst. Aisha Bibi and 12 others (2003 SCMR 1050).

Also see Mst, Shaban Irfan vs. Muhammad Sham Khan and others (2009 SCMR 40), Mst. Nasira Khatoon and another vs. Mst. Aisha Bai and 12 others (2003 SCMR 1050) & Messrs Dadabhoy Cement Industries Ltd. and 6 others vs. National Development Finance Corporation, Karachi (FLD 2002 SC 500).

7. In such facts and circumstances, the learned lower fora was quite justified to knock out the petitioners on the valid reasons. The case-law cited by learned counsel for the petitioners being run on distinguishable’ features is not applicable here, moreover, it is now well settled that each matter has to be decided keeping in view its peculiar facts and circumstances.

8. The petitioners’ learned counsel though argued the case to the best of his ability while availing maximum time, but failed to persuade that either verdicts under attack are coram non judice/ultra vires or suffering from jurisdictional defect to call for interference, hence this petition having no substance is dismissed with no order as to costs

(Y.A.) Petition dismissed

PLJ 2021 Lahore 529

Present: Asim Hafeez, J.

HABIB CONSTRUCTION SERVICES LIMITED--Petitioner

versus

LAHORE DEVELOPMENT AUTHORITY through Chief Engineer, Lahore and 4 others--Respondents

W.P. No. 6779 of 2021, decided on 8.2.2021.

Constitution of Pakistan, 1973--

----Art. 199--Award of contract for performance of civil work--Completion of work--Letter for issuance of taking over certificate--Certificate was issued on 30.10.2020 but with effect from 30.9.2020--Writ petition--Disposed of with direction--Scope of provisions of contract--Determination of effective date of taking over--Arbitral dispute--Assumption of jurisdiction--Arbitral mechanism--Challenge to--Controversy at hand-regarding determination of effective date of taking over in terms of conditions of contract clearly falls within scope of an arbitrable dispute, otherwise having factual dimensions as well--Submissions must fail; simplicitor, issuance of direction to treat constitutional petition as representation and to decide same by a speaking order would not substitute arbitral mechanism provided in terms of contractual arrangement, which has been agreed and consented to by parties at time of execution of contract--Pertinent issue is not simplicitor of availability of alternate remedy but jurisdiction when dispute squarely falls within scope of an arbitral mechanism and per se qualifies as an arbitrable dispute--Court is not inclined to embark upon an exercise to adjudicate upon, determine and decide dispute(s), by substituting dispute resolution mechanism--Petition dismissed. [Pp. 531 & 532] A, B & C

1974 SCMR 51 ref.

Syed Tassaduq Mustafa Naqvi, Advocate for Petitioner.

Sardar Qasim Hassan Khan, A.A.G. on Court’s call.

Sahabzada Muzaffar Ali, Legal Advisor on behalf of LDA.

Date of hearing: 8.2.2021.

Order

C.M No. 3 & 4 of 2021

These applications seek permission to place certain documents on record, which are taken on record subject to all just and legal exceptions.

Main case

1. Petitioner hereby impugns order dated 20.11.2020 by Respondent No. 2, passed pursuant to the direction issued by this Court vide order dated 09.11.2020 in W.P. No. 57567/2020.

2. Petitioner was awarded contract for performance of civil works relating to Lahore Orange Line Project-1-Package-1, Dera Gujran to Chauburji Chowk, Lahore. Barring unnecessary details, the crux of the matter is that petitioner claimed that works assigned were substantially completed and project was officially handed over by 29th April 2019. Thereafter, petitioner approached LDA, vide letter of 02.05.2019, and sought for issuance of Taking Over Certificate, which certificate was lately issued on 24.10.2020, wherein Taking over Certificate (TOC) was given effect from 30th September 2020. Petitioner was constrained to approach this Court and filed W.P. No. 57569 of 2020, which was disposed of in terms of the direction issued vide order dated 09.11.2020. Order impugned was passed subsequently.

3. Learned counsel strenuously argued that, in fact and law, TOC issued was contrary to the terms of agreement and record, wherein, for all intent and purposes, act of physical handing-over of the project was not given effect. Learned counsel adds that requisite requirements were carried out upon physical taking over of the project on 29.04.2019 and as consequence of due diligence, it was recommended that Taking Over be made effective from 29.04.2019, reference is made to the letter of 11.10.2019 by Chief Resident Engineer NESPAK. Submits that, pursuant to letter of 11.10.2019, performance guarantee was also released by Chief Engineer LDA. Lastly submits that order impugned was not a speaking order, who has referred to the judgments reported as “Nizamuddin and another vs. Civil Aviation Authority and 2 others” (1999 SCMR 467), “Dr. Sher Afgan Khan Niazi vs. Ali S. Habib and others” (2011 SCMR 1813), “United Bank Ltd. through Authorized Attorneys of the Bank and 2 others vs. Muhammad Ashraf and another” (PLD 2020 Lahore 400), “Messrs Airport Support Services vs. The Aiprot Manager Quaid-e-Azam International Airport, Karachi and others “ (1998 SCMR 2268), “Muhammad Aslam vs. Senior Member (Colonies), Board of Revenue, Punjab and others “(2004 SCMR 1587) and “Ishaq Khan Khakwani vs. Railway Board through Chairman and others” (PLD 2019 S.C 602).

4. The dispute simply relates to the interpretation and scope of the various provisions of the contract, involving clauses 48.1, 48.2 and clause 31.1 (c) of General Conditions of Contract (GCC). Petitioner’s claim is that TOC has to be issued under clause 48.1, effective from 29.04.2019 - irrespective of the assertion of the Employer - LDA - that project was hand over to the contractor, M/s. CR-NORINCO, which comes within the ambit of clause 31.1(c). It is expedient to reproduce relevant portion of the order impugned, which reads as:

“The petitioner was heard at length and the case was thoroughly deliberated. It is analyzed that the civil works were handed over to “M/s CR-NORINCO” by the petitioner on April 29th, 2019 not as a consequence of substantial completion, or for use of civil works for their intended purpose as contended by the petitioner, but rather for execution of interface works in accordance with the interface schedule.

Therefore, it has been deduced that handing over of civil works to the E&M Contractor cannot be qualified as “Taking Over” under Clause 48.1 or 48.2 but is rather “Opportunities for Other Contractors “ under Clause 31.1(c).

Conclusively, after detailed scrutiny and evaluation of ground realities, it is ascertained that the date of issuance of “Taking Over Certificate” as September 30th, 2020 determined in accordance with the recommendations of the Project Consultant M/s NESPAK-CEC JV is legally and lawfully correct. Moreover, request of the petitioner for release of retention money cannot be entertained till he fulfills contractual obligations pending at his end.

However, if the petitioner does not agree with the decision, he may adopt the proper mechanism for resolution of dispute in accordance with clause 67 of Conditions of Contract.

In view of foregoing, the representation of the petitioner is rejected. “

6. Learned counsel when confronted with the mechanism for arbitration procedure provided under the contract for the ‘settlement of disputes’ clause 67.1 of GCC, followed by Arbitration in terms of clause 67.3 subject to the conditions prescribed - submits that in view of facts and circumstances, as pleaded, judicial review jurisdiction can be invoked in terms of the ratio of decision in cases referred. There is no doubt that controversy at hand - regarding determination of effective date of taking over in terms of the conditions of contract clearly falls within the scope of an arbitrable dispute, otherwise having factual dimensions as well. Learned counsel argued that this Court has already exercised jurisdiction by allowing constitutional petition and issued directions, hence, matter can be adjudicated again by exercising judicial review jurisdiction. I am afraid that submissions must fail;

simplicitor, issuance of direction to treat constitutional petition as representation and to decide same by a speaking order would not substitute arbitral mechanism provided in terms of contractual arrangement, which has been agreed and consented to by the parties at the time of execution of the contract. Judgments relied upon are distinguishable, which have no application to the facts of the case, particularly in the wake of peculiar dispute, attracting arbitral mechanism. This is not the case, alike the case of Messrs Airport Support Services (Supra) where violation of mandatory provision requiring prior notice as envisaged in Section 3 of Central Government Lands and Buildings (Recovery of possession) Ordinance, 1985 was a relevant issue. The pertinent issue is not simplicitor of availability of alternate remedy but assumption of jurisdiction when dispute squarely falls within the scope of an arbitral mechanism and per se qualifies as an arbitrable dispute. In view of the above, this Court is not inclined to embark upon an exercise to adjudicate upon, determine and decide dispute(s), by substituting dispute resolution mechanism. Reference is made to the case of Al-Mahmood Industries (Pakistan) Ltd. v. The Trading Corporation of Pakistan Ltd And Another (1974 SCMR 51).

1. This petition is incompetent and same is, therefore, dismissed. Any observation hereinabove would not prejudice the case of any party nor influence determination of the matter, if resort is made to the of dispute resolution mechanism.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 532

Present: Rasaal Hasan Syed, J.

MUHAMMAD YAQOOB--Petitioner

versus

MUHAMMAD HANIF through his legal heirs and others--Respondents

C.R. No. 691 of 2011, heard on 3.4.2019.

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

----S. 12--Civil Procedure Code, (V of 1908), S. 115, O.IX, R. 13--Suit for declaration--Ex-parte decreed--Application for setting aside ex-parte decree--Report of ahlmad--Application was dismissed--Appeal--Dismissed--Non-framing of issue--Non-recording of evidence--Validity of orders--Non-delivering of notices to petitioners--Plea of limitation in order of Court--Right to bring evidence--Opportunity of proper hearing--Non-following of legal course--Challenge to--Addl. District Judge, did not consider application on merit, rather opted to dismiss same on assumption that it was barred by time--Addl. District Judge, did not even refer relevant provision of Limitation Act, 1908 which was applicable on subject nor had attempted to consider parameters given therein--None of notices was ever delivered to petitioner and that reports on basis thereof as well as publication and ex-parte order were legally untenable--No issue was framed either on plea of limitation or on merits to application, yet Civil Judge vide order dated 18.6.2010 dismissed application for setting aside of decree on assumption that all possible measures were adopted for obtaining service including publication in newspaper and therefore, application was without any prima facie support to contention raised therein. Addl. District Judge, dismissing appeal on assumption of application being barred by time, did not touch findings on merits of application--It was also required to be determined whether a declaration of all efforts to procure direct service having remained unsuccessful was ever made by Court after examining process server as required by Order V, Rule 19, C.P.C. before passing an order of publication of notice in newspaper and whether there was any basis or material from which knowledge could be assumed--Petitioner had right to bring evidence on record to prove that there was no lawful service, he had no knowledge of decree and thus reports were collusive and fictitious--This opportunity was never granted as no issue was framed nor case was fixed for recording evidence--Trial Court did not frame any issue as to sufficient cause for annulment of decree which denied opportunity of proper hearing to petitioner as he was not given a chance to produce evidence in support of his plea of nonappearance due to lack of knowledge or any other sufficient ground--Since impugned orders have been passed without following legal course, safe cannot be countenanced being illegal and unsustainable--Petition allowed. [Pp. 534, 535, 536 & 537] A, B, C, D, F & G

1985 SCMR 1228 ref.

Limitation Act, 1908 (IX of 1908)--

----S. 164--Limitation for filing of application--Service of summons--Application for setting aside of ex-parte decree could be filed within 30 days from date of decree provided summons were duly served.

[P. 535] E

Mr. Awais Ahmed Qazi, Advocate for Petitioner.

Nemo for Respondents.

Date of hearing: 3.4.2019.

Judgment

This revision petition impugns order dated 18.6.2010 of the learned Civil Judge Depalpur, as also the order dated 2.2.2011 of the learned Addl. District Judge Depalpur whereby the application for setting aside of ex-parte decree dated 08.12.2003 was dismissed and the appeal against the same was also declined.

1. Precisely, facts which are material for the decision of this revision petition are that the respondent filed a sure for declaration to challenge general power of attorney and the sale deed on the plea of fraud and fabrication wherein an ex-parte decree was passed on 08.12.2003 by the learned Civil Judge, Depalpur. On initiation of execution proceedings, and receiving notice therein, the petitioner claimed to have moved an application under Order IX, Rule 13, C.P.C. stating that he received the notice in the execution on 29.11.2004, applied for certified copy of the decree, the file was not available and that in the process of obtaining copy, he acquired knowledge of the pending execution in the relevant Court whereupon he was moved the application for setting aside of ex-parte decree. It was pleaded that no summons or notice was ever personally served upon the petitioner either through ordinary process or registered post nor any publication was ever received by him and that the alleged reports of the process serving agency were collusive and fictitious and also that he had no knowledge of the decree till such time he received the notice in the execution on 29.11.2004. Application for setting aside of ex-parte decree was moved on 30.11.2004 which indicates that a report was secured from the ahlmad who reported about the Court where the execution petition was pending and also reported that the next date of hearing was 10.12.2004. The proceedings on the application thereafter started, reply of the respondent was obtained. The order-sheet reveals that without framing any issue or recording any evidence, the learned Civil Judge seized of the application under Order IX, Rule 13, C.P.C. with a brief order observed that “the application was without any prima facie support to the contention raised by the applicant So, the application merits rejection and the same is hereby rejected”. It is discernible that no issue was framed nor any effort was made to verify from record as to whether the process of the Court, either through process server or registered post or publication was ever personally served upon the petitioner or as to whether the reports were supported by a lawful affidavit and that whether the Court had satisfied about the compliance of the rule by examining the process server, as contemplated by Order V, Rule 19, C.P.C. before directing publication of notice. The Court proceeded to dismiss the application.

3. In appeal the learned Addl. District Judge, did not consider the application on merit, rather opted to dismiss the same on the assumption that it was barred by time. As noted herein before, the learned Civil Judge did not touch the question of limitation but the learned Addl. District Judge, in his own wisdom, assumed that the application has been filed after 30 days of the decree and without any application for condonation of delay was not proceedable and that the petitioner had not allegedly explained the delay in the filing of application to set aside the ex-parte decree. It is also manifest from the order that the learned Addl. District Judge, did not even refer the relevant provision of the Limitation Act, 1908 which was applicable on the subject nor had attempted to consider the parameters given therein.

4. Learned counsel for the petitioner questioning the validity of the two orders submitted that there is no lawful and proper disposal of the application under Order IX, Rule 13, C.P.C. Further submitted that the petitioner had specifically pleaded that he was never served with any process of the Court and that the reports were fictitious and that he came to know of the ex-parte decree on 29.11.2004 while he moved the application next day and the application was within time. Finally, it was argued that law favors adjudication on merits which rule has been breached in this case.

1. No one entered appearance on behalf of the respondents. It is observed that CM l-C/17 for earlier fixation of revision petition was filed by the respondents which request was acceded to yet no one has represented them at the time of hearing. The case being old one which is pending since 2011, adjournment could not be granted hence ex-parte hearing was made by this Court.

6. Perusal of the copies of the record annexed with this revision petition reveals that the suit for declaration filed by the respondent was decreed ex-parte on 08.12.2003. Application for setting aside of ex-parte decree was instituted on 30.11.2004. The stance of the petitioner was that he received a notice in the execution proceedings on 29.11.2004, applied for certified copies, the file was not traceable and moved the application on the next day i.e. 30.11.2004. That he was not served with any process/notice/summon, either through the process sever or registered post AD or through publication. None of the notices was ever delivered to the petitioner and that reports on the basis thereof as well as publication and ex-parte order were legally untenable. And that the application was being filed immediately after acquiring the knowledge of the ex-parte decree. Record indicates that respondent contested the application alleging that he was aware of the decree and that there was no ground for the annulment of the ex-parte decree. It is discernible from the file that no issue was framed either on the plea of limitation or on merits to the application, yet the learned Civil Judge vide order dated 18.6.2010 dismissed the application for setting aside of decree on the assumption that all possible measures were adopted for obtaining service including publication in the newspaper and therefore, the application was without any prima facie support to the contention raised therein. The learned Addl. District Judge, dismissing the appeal on the assumption of application being barred by time, did not touch the findings on merits of the application.

7. Under Article 164 of the Limitation Act, 1908 the application for setting aside of the ex-parte decree could be filed within 30 days from the date of decree provided the summons were duly served. In this scenario, it was a question of fact to be determined by the Court whether the summons was duly served or whether the petitioner had the knowledge and despite that did not appear in the suit. It was also essential for the Court to examine the original record at least to verify that the entire process was lawfully followed before the ex-parte proceedings order was passed or the decree followed. For this purpose the Court needed to see whether the reports satisfied the requirement of Order V, Rule 17, C.P.C. And that the name of the person identifying the petitioner who was to be served or the house where the service was effected was disclosed, the time and date were given and whether any actual service was made by the process server, the correctness of the address was identified or verified by any person, and that the reports were duly witnessed by the witnesses and were verified in accordance with the rule. It was also required to be determined whether a declaration of all efforts to procure direct service having remained unsuccessful was ever made by the Court after examining the process server as required by Order V, Rule 19, C.P.C. before passing an order of publication of notice in newspaper and whether there was any basis or material from which knowledge could be assumed. It was only after the Court’s satisfaction that everything could be concluded to be in accordance with law, and due service was effected, that the question of limitation could be reliably determined. In this case the petitioner has taken the plea that he was never served with any process in any manner or mode and that he did not receive any notice/summon or newspaper and that he could only acquire the knowledge on 29.11.2004 when he received the notice in the execution proceedings. To enable him to prove the assertion, the framing of issues and recording of evidence was a pre-condition. In “Syed Muhammad Anwar, Advocate v. Sheikh Abdul Haq” (1985 SCMR 1228), it was observed by the honourable Supreme Court that Order V, Rule 20, C.P.C. requires that the Court shall be satisfied that there were reasons to believe that the defendant was keeping out of the way for the purpose of avoiding service or that for any other reason the summons cannot be served in the ordinary way after which it could order that service be effected through substituted manner. In this case, both the Courts below did not take the pain to either receive the

evidence or determine if the service was only effected in accordance with law and till such time the findings are recorded that the ex-parte proceeding order resulted after the lawful service, the application for setting aside of the ex-parte decree could not be dismissed on the assumption having not been filed within 30 days from the date of an ex-parte decree as the same was barred by time. Even otherwise the petitioner had the right to bring evidence on record to prove that there was no lawful service, he had no knowledge of the decree and thus the reports were collusive and fictitious. This opportunity was never granted as no issue was framed nor the case was fixed for recording the evidence. Even otherwise, the learned trial Court did not frame any issue as to sufficient cause for the annulment of decree which denied the opportunity of proper hearing to the petitioner as he was not given a chance to produce evidence in support of his plea of nonappearance due to the lack of knowledge or any other sufficient ground. Since the impugned orders have been passed without following the legal course, the same cannot be countenanced being illegal and unsustainable.

1. Resultantly, the instant revision petition is allowed, both the orders are set aside, and the application under Order IX, Rule 13, C.P.C. shall be deemed to be pending, which shall now be decided by the learned Civil Judge, after framing of issues on the plea of limitation and the existence or otherwise of sufficient cause for seeking annulment of the decree. Since the matter is old one, the learned Civil Judge shall proceed in the matter expeditiously so as to ensure the final disposal of the application after full opportunity of hearing/evidence to the parties within three months from the date of receipt of copy of this Order with the intimation to the Deputy Registrar (Judl.) of this Court.

(Y.A.) Petition allowed

PLJ 2021 Lahore 537 [Multan Bench, Multan]

Present: Rasaal Hasan Syed, J.

MUHAMMAD SANAULLAH--Petitioner

versus

DIRECTOR GENERAL, PUNJAB EMERGENCY SERVICES (RESCUE-1122), LAHORE and 3 others--Respondents

W.P. No. 12469 of 2020, decided on 24.9.2020.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Application for post of driver--Petitioner was qualifying test and interview--Calling for training in emergency services academy--Issuance of instructions schedule--Joining of emergency service by petitioner--Issuance of letter regarding struck-off name of petitioner from list--Direction to--Office is directed to send a copy of this petition along with all its annexures to Respondent No. 2 who by treating it as representation on behalf of petitioner will attend to grievance raised and after considering matter with all sincerity as precious human lives are involved, to dispose of same, expeditiously, in accordance with law on its own merits ensuring that no one is unduly discriminated against--Petition disposed of. [P. 538] A

Sardar Ashfaq Ahmad Baloch, Advocate for Petitioner.

Mr. Azhar Saleem Kamlana, Assistant Advocate-General Punjab, on Court call.

Date of hearing: 24.9.2020.

Order

Through the instant petition the following prayer is made:

“... that this writ petition may very kindly be accepted, impugned letter/order dated 18.07.2020, issued by Respondent No. 2 may graciously be set-aside and respondents may be directed to allow the petitioner to complete his Emergency Rescue Training as Driver and issued appointment letter to him, in the interest of justice.

It is further prayed, that the operation of impugned letter/order dated 18.07.2020 may kindly be suspended to the extent of petitioner and he may be allowed to complete his Emergency Rescue Training, till the final decision of the writ petition ..."

1. Submits that in similar circumstances direction dated 10.09.2020 in W.P.No. 11465/2020 was issued.

3. Office is directed to send a copy of this petition along with all its annexures to Respondent No. 2/Deputv Director (HR), Punjab Emergency Services (Rescue-1122), Lahore, who by treating it as representation on behalf of the petitioner will attend to the grievance raised and after considering the matter with all sincerity as precious human lives are involved, to dispose of the same, expeditiously, in accordance with law on its own merits ensuring that no one is unduly discriminated against.

1. With these observations the petition is disposed of.

(Y.A.) Petition disposed of

PLJ 2021 Lahore 539

Present: Faisal Zaman Khan, J.

Mst. HAMEEDAN BIBI, etc.--Petitioners

versus

PROVINCE OF PUNJAB, etc.--Respondents

C.R. No. 16075 of 2021, decided on 9.3.2021.

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

----Ss. 42 & 54--Civil Procedure Code, (V of 1908), S. 115--Suit for declaration and permanent injunction--Dismissed--Appeal--Dismissed--Mutation of inheritence--Denial of claim of petitioners--Preparation of Exh-P1 (FRC) after filing of suit--Producing of document through counsel without any witness--Challenge to--Counsel for petitioners has not been able to give any plausible explanation but to highlight that since said document was exhibited without; objection thus there was no requirement for requisitioning record--Petitioners produced Exh.Pl (FRC) however a bare perusal of said document would show that it was prepared much after filing of suit, for which there is no explanation--Once it has been alleged by petitioners that they are successors of Mst. Hameedan Bibi, they had to prima facie show that on what document they place reliance, which was also to be appended with, plaint, however, since said document was not in existence when suit was filed therefore same was not relied upon--It was imperative for petitioners to have summoned original record of NADRA in order to produce and prove FRC however since same has not been done--Entries made in record of NADRA are not conclusive proof--Another aspect which makes said document inadmissible in evidence is that it was produced by counsel appearing on behalf of petitioners before trial Court in his own statement while closing evidence of petitioners and was not produced through any witness, hence, production of said document through counsel is not a valid tender--Petitioners have failed to prove fact that Mst. Hameedan Bibi was successor of Ijaz, therefore, Courts below have rightly decided against petitioners--Counsel for petitioners has not been able to point out any jurisdictional defect or procedural impropriety in concurrent judgments and decrees passed by both Courts below--Revision petition dismissed.

[Pp. 541 & 542] A, B, C, D, E, F & G

2017 SCMR 172, 2012 SCMR 242, PLD 2020 SC 749, 2016 SCMR 24, PLD 2015 SC 137 & PLD 1994 SC 291 ref.

Ch. Ghulam Rasool Tarar, Advocate for Petitioners.

Date of hearing: 9.3.2021.

Order

Through this civil revision, judgments and decrees dated 30.09.2019 and 26.11.2020 passed by the learned Civil Judge, Sargodha and the learned Additional District Judge, Sargodha have been assailed. By virtue of the former judgment, a suit fox declaration filed by the petitioners against the respondents has been dismissed and through the latter, the same has been upheld.

1. The facts giving rise to the present civil revision are that a suit for declaration along with consequential relief of permanent injunction was filed by the petitioners against the respondents assailing mutation of inheritance No. 2488 dated 16.11.1973 on the ground that the parties to the present litigation are collaterals of one Ijaz and on his demise the disputed mutation was sanctioned however the predecessor in interest of the petitioners namely Mst. Hameedan Bibi was ousted from the array of successors/legal heirs of Ijaz, therefore, the said mutation is not in accordance with law. Written statements were filed by the respondents, out of whom, Respondent No. 4 filed conceding written statement whereas the others filed contesting written statements denying the claim of the petitioners. Out of divergent pleadings of the parties, 10 issues were framed; evidence pro and contra was led whereafter through judgment and decree dated 30.09.2019 the suit was dismissed. Feeling aggrieved, petitioners preferred an appeal which also met the same fate and was dismissedvide judgment and decree dated 26.11.2020, hence this petition.

2. At the outset of hearing, learned counsel for the petitioners has been confronted with the fact that what evidence has been produced by the petitioners to prove that Mst. Hameedan Bibi was the successor of Ijaz.

3. Replying to the above, learned counsel for the petitioners submits that petitioners produced Exh.P1 which is the Family Registration Certificate (FRC) issued by NADRA which was sufficient to prove connection of Mst.Hameedan Bibi with Ijaz. At this juncture, learned counsel has further been confronted with the fact that the suit was filed by the petitioners on 31.07.2010 whereas the FRC was prepared/issued on 14.10.2013, i.e. much after the filing of the suit, thus, how the said document could be relied upon. He has also been confronted with the fact that since the heirship of Mst. Hameedan Bibi was denied by the respondents, therefore, it was imperative for the petitioners to have summoned the record maintained by NADRA for proving the FRC as to whether it was issued in accordance with law however no such endeavour was made on part of the petitioners, therefore, the said document could neither be produced in evidence nor could be proved.

5. In spite of his earnest effort, learned counsel for the petitioners has not been able to give any plausible explanation but to highlight that since the said document was exhibited without objection thus there was no requirement for requisitioning the record.

1. Arguments heard. Record perused.

7. The pivotal question, which requires determination by this Court, is as to whether predecessor in interest of the petitioners namely Mst. Hameedan Bibi was the successor of Ijaz. To prove this fact, petitioners produced Exh.P1 (FRC) however a bare perusal of the said document would show that it was prepared much after the filing of the suit, for which there is no explanation. Once it has been alleged by the petitioners that they are successors of Mst.Hameedan Bibi, they had to prima facie show that on what document they place reliance, which was also to be appended with the plaint, however, since the said document was not in existence when the suit was filed therefore the same was not relied upon.

8. In the above circumstances, it was imperative for the petitioners to have summoned the original record of NADRA in order to produce and prove the FRC however since the same has not been done thus it is violative of the dicta laid down by the Hon’ble Supreme Court of Pakistan in judgment reported as Province of the Punjab through Collector, Sheikhupura and others v. Syed Ghazanfar Ali Shah and others [2017 SCMR 172], hence the said document cannot be read into evidence.

9. Moreover, the entries made in the record of NADRA are not conclusive proof. For reference, reliance can be placed on judgment reported as Ali Hassan @ Jamshaid v. The State [2012 SCMR 242].

10. Another aspect which makes the said document inadmissible in evidence is that it was produced by the learned counsel appearing on behalf of the petitioners before the learned trial Court in his own statement while closing the evidence of the petitioners and was not produced through any witness, hence, production of the said document through counsel is not a valid tender. For reference, reliance can be placed on judgments reported as Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others [PLD 2010 SC 604] and Manzoor Hussain (deceased) through L.Rs. v. Misri Khan [PLD 2020 SC 749].

11. It shall not be out of place to mention here that mere production of a document and to prove a document are two separate segments. The Hon’ble Supreme Court of Pakistan in judgment reported as Dawa Khan through L.Rs. and others v. Muhammad Tayyab [2013 SCMR 1113] has categorically held that production and proof of a document are two different segments and in case a document is produced without any objection, the same cannot be termed to be proved. The resume of the afore-noted judgment is that if a document is denied by the other side, it would be necessary for the beneficiary, who is relying on the document to prove the same through independent evidence and its mere production would not mean that it has been proved.

12. In the above circumstances, since the petitioners have failed to prove the fact that Mst. Hameedan Bibi was the successor of Ijaz, therefore, the Courts below have rightly decided against the petitioners.

13. For what has been discussed above, since the learned counsel for the petitioners has not been able to point out any jurisdictional defect or procedural impropriety in the concurrent judgments and decrees passed by both the Courts below, therefore, in view of judgments reported as Nizam-ud-Din and others v. Sheikh Zia ul Oamar and others [2016 SCMR 24], Iqbal Ahmed v. Managing Director Provincial Urban Development Board, N.-W.F.P, Peshawar and others [2015 SCMR 799], Mandi Hassan alias Mehdi Hussain and another v. Nazar Hussain and another [2014 SCMR 1469] and Haji Muhammad Din v. Muhammad Arif [PLD 2015 SC 137], Mst. Zaitoon Begum v. Malik Muhammad Abdullah [PLD 1994 SC 291], no interference is called for by this Court in the concurrent findings rendered by the Court below, as a sequel to which, this petition fails and the same is dismissed in limine.

(Y.A.) Petition dismissed

PLJ 2021 Lahore 543

Present: Ali Baqar Najafi, J.

MUNIR AHMAD--Petitioner

versus

LDA etc.--Respondents

W.P. No. 232398 of 2018, decided on 23.6.2020.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional petition--Ownership on basis of registered sale-deed--Non-sanctioning of mutation in favour of petitioner--Suit land was sold to some one--Application for review of mutation--Allowed--Appeal--Dismissed--Revision petition--Sanctioning of mutation in favour of petitioner by District Collector--Application for amendment of award--Allowed--Name of petitioner was added--issuance of allocation letters--Delivery of possession to petitioner--Civil suit was filed by petitioner and others--Compromise was effected--Issuance of show-cause notice--Sale-deed of petitioner was declared fake and fabricated document--Writ petition--Disposed of--Sale-deed was partially cancelled--Moving of reference by LDA for cancellation of award to LAC--Bona fide commission--Challenge to--As on today, sale deed in favour of petitioner has been partially cancelled, mutation has judgment of civil suit in respect of cancellation of sale deed has not been challenged by petitioner, background of litigation between petitioner and others was not brought to notice of this Court and even they were not impleaded as party against which relief is being claimed, therefore, certain raised questions of fact cannot be decided before this Court--Matter in hand squarely comes within purview of LDA Commission--These writ petitions are disposed of directing respondent to place case of petitioners in bonafide commission constituted under Lahore Development Authority Commission Rules, 2014 for decision in matter in accordance with law--Petition disposed of.

[Pp. 547 & 548] A & C

Lahore Development Authority (Amendment) Act, 2013--

----S. 32--Constitution of commission--Power of commission--A commission has been constituted to deal with bonafide purchasers, illegal construction and illegal housing schemes--Commission is comprised of Technical experts for all above referred three categories--Commission is empowered under Rule 5 to regulate its own procedure to ensure due process of law, therefore, not required to follow provisions of Qanun-e-Shahadat Order, 1984 and Code of Civil Procedure, 1908 (hereinafter to be called CPC)--In discharge of its duties, Commission will have same powers under CPC for summoning and enforcement of attendance of a person for examining on oath, recovery and production of documents, receiving evidence on affidavits, issuance of commissions for examination of witnesses or documents, dismissing an application for default or directing to proceed; ex-parte, and execution of its recommendations--All proceedings of Commission are considered as judicial proceedings conducted within meaning of Sections 193, 219 and 228 for purpose of Section 196 of the Pakistan Penal Code, 1860. [P. 547] B

Syed Anwar-ul-Haq Gillani, Advocate for Petitioner.

Sahibzada Muzaffar Ali, Senior Legal Advisor for LDA for Respondent.

Date of hearing: 18.2.2020.

Order

This order shall dispose of W.P. No. 232398-2019 titled “Munir Ahmad vs. LDA etc.”, W.P.No. 226087-2018 titled “Mian Muhammad Yasin vs. LDA etc.” as well as Crl. Org.No. 204750-2018 titled “Munir Ahmad vs. Khurram Mukhtar etc.” and they all invoke a common question of law and facts.

1. Briefly, the facts giving rise to the filing of the constitutional petition are that the petitioners were the owner of land measuring 36 kanal 10 marlas bearing Khasra No. 1157/291, 1158/294, 1159/294. 1160/296 Mauza Ajhodia Pur Tehsil Cantt, District Lahore on the basis of registered sale deed dated 12.04.1980. However, he could not get the mutation sanctioned in his favour. The original vendor, taking its advantage had sold this land to someone else through a registered sale deed dated 30.07.1980. He filed an application for the review of the said mutation which was allowed and it was reviewed on 23.09.2009. This order was challenged by the adversary before the Executive District Officer (Revenue), Lahore which was dismissed on 01.06.2010, upheld by the learned Member Board of Revenue while dismissing the revision petition on 14.10.2012.

2. Meanwhile, the District Collector, Lahore sanctioned the mutation Nos. 8565 & 8571 in favour of the petitioner on 30.09.2009, and on the basis of which, the petitioner applied before the Executive District Officer (Revenue), Lahore to amend the award which request was allowed on 10.10.2009 by adding the name of the petitioner. Consequently, LDA allocated two plots Bearing Nos. 170 and 171 Block-K, measuring 17 marlas each and also issued the allocation letters on 01.12.2011 and in pursuance thereto, also delivered the possession to the petitioner on 23.12.2011.

3. On the other hand, the aggrieved party had filed a civil suit against the petitioner and others, in which a compromise was effected between the parties, according to which the petitioner was ready to surrender the land measuring 19 kanal 1 marla in their favour, as he is entitled to another exempted plot measuring 15 marlas. He had also deposited Rs. 10,98,504/- against the demand notice dated 11.11.2011 on account of the development charges. For the released of his grievance, he filed W.P. No. 13453-2012 which was disposed of on 06.05.2015 as follows:

“In view of the consensus arrived at between the parties instant petition is disposed of with a direction to the Director Exemption LDA (Respondent No. 4) to proceed with the matter regarding exemption of plots against the remaining land of the petitioner measuring 14K-8M acquired by the LDA from Mauza Ajhodia Pur after decision of the suits filed by the junior vendees whose mutations have already been cancelled by the revenue authorities. In case grievance of the petitioner is not redressed, he would be at liberty to approach this Court afresh.”

1. To the surprise of the petitioner, the petitioner had received a show-cause notice on 25.05.2015 stating that in view of the judgment and decree dated 07.02.2012 the sale deed of the petitioner has been declared illegal being fake and fabricated document. The petitioner, therefore, filed W.P.No. 1926/2015 and Crl.Org.No. 1568- W-2015 which were disposed of on 30.12.2015 to the following effect:

“Mr. Khurram Mukhtar, Land Acquisition Collector, LDA Present in the Court, states that he withdraws the show-cause notice dated 25.05.2015 issued in the name of the petitioner. Further submits that the application filed by the petitioner pending with the authority shall be decided on its own merits strictly in accordance with law.

1. In view of above, this writ petition is disposed of with the direction, that the application filed by the petitioner shall be adjudicated strictly in accordance with law on its own merits.”

2. Later, Crl. Org. No. 2-W-2017 was also filed which was disposed of on 26.01.2017 with a direction to LDA to decide the application within two months:

“In this view of the matter, this criminal original is dismissed as withdrawn. However, the concerned respondent is directed to decide the application of the petitioner within a period of two months positively and without any failure strictly in accordance with law from the date of receipt of order of this Court. “

1. Yet another Crl. Org. No. 72466-2017 was filed by the petitioner but of no avail.

2. The case of the petitioner in W.P. No. 232398-2018 is that a meeting was convened and its minutes dated 28.03.2018 must be set- aside and in other petition bearing W.P. No. 226087 of 2018 the consequential actions have been challenged.

3. In the report and parawise comments submitted by the LDA, the facts narrated by the petitioners were although admitted, yet it was contended that petitioner cannot be granted the exemption of 15 marlas, since “genuine” vendees were granted exemptions after due diligence since their ownership was found intact in the revenue record. Besides, the civil suit filed by one Pervaiz Iqbal had been decreed on 07.02.2012 declaring the sale deed of the petitioner as void ab-initio and, consequently, the mutations in his favour were also cancelled. Although, the sale deed was partially cancelled in violation of Section 40 of the Specific Relief Act, 1877, since different rights and obligations under the instrument are distinct or separate. Yet it was categorically stated that partial cancellation if registered sale deed cannot be implemented. According to the LDA, the said judgment of the civil Court, was not challenged by the petitioner, though the Director Land Development-I, LDA has also moved a reference to LAC for the cancellation of award. The decision of the committee is reproduced as under:

“DECISION:

The case of the petitioner/applicant is based on malafide, fraud, forgery, concealment of facts. Upon perusal of the entire circumstances it transpires that fraud is floating on the record. The petitioner/applicant has approached with unclean hands and is not entitled to any relief. The subject matter of the case has already been taken up in 1980 in the form of a civil suit filed by the present petitioner and the same was dismissed. Subsequently, the same has never been restored nor restoration has been revealed by the present petitioner before any Court of law. It is a cardinal principle of law that fraud vitiates all proceedings. The present petitioner failed to justify his ownership before the civil Court in 1981 and also in his civil revision before honourable Lahore High Court, Lahore. The present petitioner failed to prove his case for grant of exemption thus is not entitled to any relief.”

1. In the parawise comments, by the Commissioner, Lahore it has been admitted that Reference No. DLD-1/86 dated 05.05.2018 regarding cancellation of award dated 12.10.2009 is pending before him but the petitioner was not attending it.

2. Arguments heard. File perused.

12. After hearing the learned counsel for the parties and perusing the file, it is straightaway observed that as on today, the sale deed in favour of the petitioner has been partially cancelled, the mutation has been revised the judgment of the civil suit in respect of the cancellation of the sale deed has not been challenged by the petitioner, the background of the litigation between the petitioner and others was not brought to the notice of this Court and even they were not impleaded as party against which relief is being claimed, therefore, certain raised questions of fact cannot be decided before this Court.

1. Learned counsel for the LDA has taken a stand that the matter can be referred to the Bonafide Commission of LDA where all the points raised before this Court can be resolved.

14. Under Lahore Development Authority Commission Rules, 2014, made under Section 32 of the LDA (Amendment) Act, 2013 (XXXVI of 2013) a commission has been constituted to deal with the bonafide purchasers, illegal construction and illegal housing schemes. This Commission is comprised of Technical experts for all the above referred three categories. The Commission is empowered under Rule 5 to regulate its own procedure to ensure due process of law, therefore, not required to follow the provisions of Qanun-e-Shahadat Order, 1984 and Code of Civil Procedure, 1908 (hereinafter to be called CPC). In the discharge of its duties, the Commission will have the same powers under CPC for summoning and enforcement of the attendance of a person for examining on oath, recovery and production of documents, receiving evidence on affidavits, issuance of commissions for the examination of witnesses or documents, dismissing an application for default or directing to proceed ex-parte, and execution of its recommendations. All proceedings of the Commission are considered as judicial proceedings conducted within themeaning of Sections 193, 219 and 228 for the purpose of Section 196 of the Pakistan Penal Code, 1860.

1. Under Rule 5 (Proceedings) the Commission may initiate the proceedings, if so requested, by or on behalf of an authority, or upon application of any person claims to be a bonafide purchaser, if his allotment/transfer of interest has been cancelled or called in question by the Authority, or who is owner in possession of an illegal construction, or is a developer or is a resident of an illegal housing scheme, for the purposes of consideration and recommendation.

2. The application before the Commission shall contain a precis of material facts, with full particulars of any illegal act committed by persons, with reference to date and place or practice, specifying the mode and the manner for regularization, with an effort to pay the amount for this purpose. Apart from the payment of Rs. 5000/- as processing fee, at the time of filing the application but during the proceedings, the Commission may require the applicant to deposit same as security. The Commission shall proceed with hearing of the case preferably on day-to-day basis and decide the matter within four (4) months and can also hear the applications at the places as ordered by the Government. The parties are permitted to be represented through attorney so authorized. The Chairman may assign the application to the full Court or to a bench. The quorum for proceedings shall be Chairman and a member, or two members without the Chairman.

3. Under Rule 8, The Commission can recommend by majority for retrieval of property in the name of authority, transfer in the name of the applicant subject to the payment to the authority, fixing the separate responsibility of the parties to share the loss. In the matter of illegal Housing Schemes, it can recommend for demolishing of structure and roads, approval of housing society with or without amended plan or payment of fine, fee or penalty as determined by the Commission. In the cases of illegal construction it can also recommend demolition by applicant or Authority, recovery of dues. Fines, rectifications of the illegal construction and apportionment of the cost by each party, partially demolish the construction and recover the cost thereof, determine the rights of the parties in that eventuality, and recommend for the approval of construction plan subject to the payment of fine, fee and penalties to the Authority.

18. Since the matter in hand squarely comes within the purview of LDA Commission, therefore, these writ petitions are disposed of directing the respondent to place the case of the petitioners in the bonafide commission constituted under the Lahore Development Authority Commission Rules, 2014 for the decision in the matter in accordance with law.

(Y.A.) Petition disposed of

PLJ 2021 Lahore 549

Present: Ch. Muhammad Iqbal, J.

Rana MUHAMMAD ASHRAF--Petitioner

versus

MANZOOR AHMAD and 3 other--Respondents

W.P. No. 10339 of 2011, heard on 7.10.2020.

Constitution of Pakistan, 1973--

----Art. 199--Filing of ROR--Accepted--Matter was remanded with direction to decide matter afresh--Reservation of land for lambardari grant--Ejectment tenant scheme--Abolishing of scheme--Suit land was within prohibitory zone--Issuance of notices to tenants--Suit land was resumed by collector--Resumption allotment order--Appeals--Dismissed--Challenge to--After remand matter in issue is still pending before Commissioner Sahiwal Division Sahiwal and petitioner may raise all objections before Commissioner Sahiwal Division, who shall decide matter on merit whereas, it is settled law that constitution petition is not maintainable against remand order--As matters have been remanded back by Member Board of Revenue to Commissioner Sahiwal Division Sahiwal as such issue of restoration of possession to respondent shall .also be decided afresh by said forum without being impressed by above impugned order dated 24.05.2010--Petitions disposed of. [Pp. 551 & 552] A & B

Ch. Nazir Ahmad Kamboh, Advocate for Petitioner.

M/s. Ch. Iqbal Ahmad Khan & Salman Manzoor, Advocates for Respondents No. 1 to 3.

Mr. Asif Mahmood Cheema, Addl. A.G. for Respondents No. 4 to 6.

Date of Hearing: 7.10.2020.

Judgment

This single judgment, I intend to decide the above titled writ petition along with connected Writ Petition Nos. 10340/2011 & 13246/2010 as common questions of law and facts are involved in these cases.

1. Through these writ petitions, the petitioner has challenged the vires of order dated 19.04.2011 passed by the Member (Judicial-VII), Board of Revenue, Punjab who accepted ROR Nos. 1708 & 1729 of 2009 and set aside order dated 19.09.2006 passed by the District Officer (Revenue), Pakpattan as well as order dated 23.10.2009 passed by the Executive District Officer (Revenue), Sahiwal and remanded the matter to the Commissioner, Sahiwal Division, Sahiwal with the directions to decide the matter afresh after examining the various instructions of Board of Revenue on the subject and affording hearing to the parties.

2. Brief facts of the cases as contained in these petitions are that land measuring 200-Kanals of Square No. 28 situated at Chak No. 145-EB, Tehsil Arifwala, was reserved for Lambardari grant. But the said land was allotted to the following persons:

(i) Muhammad Bakhsh son of Ghamoo (predecessor-in-interest of Respondents No. 1 to 3)- land measuring 64-Kanals.

(ii) Rehma son of Muhammad Bakhsh (predecessor-in-interest of Shaukat Ali etc.) - land measuring 63-Kanals and

(iii) Ruldu son of Phuman - land measuring 72-Kanals

under ejectment tenant scheme in 1952. The said scheme was abolished in the year 1960. The Government decided to grant proprietary rights of the land meant for ejected tenants/ lessees on certain conditions except the land (as per condition No. VIII) situated within 10-miles of outer limits of first class municipalities. As the suit land was within prohibitory zone, notices were issued to the tenants and said land was resurned by the Collector, Pakpattan vide order dated 17.04.1965. After resumption of land measuring 100-Kanals from Ruldu son of Phuman and Muhammad Bakhsh son of Ghamoo the same was allotted to Talib Khan, Lambardar of the same Chak under the Lambardari grant who is still in possession.

Against the above said resumption/allotment order predecessor-in-interest of the respondents filed a civil suit which was decreed by the learned Senior Civil Judge, Sahiwal vide judgment and decree dated 16.12.1966. Feeling dis-satisfied the Province of West Pakistan filed appeals which were allowed by the learned appellate Courtvide judgment and decree dated 24.10.1968 who set aside judgment and decree of the learned trial Court. The predecessor-in-interest of Shoukat Ali etc. and Mst. Jannat Bibi assailed the above decision in RSA No. 330/69 RSA No. 332/69 which were disposed of vide order dated 20.06.1991 and to their extent, said judgment and decree has attained finality. Notices under Section 24 of the Colonization of Govt. Lands Act, 1912 were issued in the year 1983 and the District Collector resumed the land on 30.11.1992 in pursuance of judgment of the learned District Judge which has attained finality against Manzoor Ahmad who had not challenged the said decision any further. Manzoor Ahmad switched over to other forum and filed appeal before the Additional Commissioner, which was dismissed on 23.02.2000.

Petitioner being permanent Lambardar of the said village requested the Member Board of Revenue for allotment of resumed land to him under Lambardari grant and the District Officer (Revenue) Arifwala on 22.04.2006 submitted detailed report to the Member, Board of Revenue for the allotment of land measuring 100-Kanals to the petitioner. In pursuance of directive issued by the Member Board of Revenue, the D.D.O (Colonies) resumed the land measuring 36-Kanals comprising Nos. 28/9 to 12 and 13/1 situated in Chak No. 145-EB already reserved for Lambardari grant since 1935 was allotted to the petitioner vide order dated 19.09.2006 and mutations No. 3437 and Mutation No. 3440 dated 23.09.2006 were accordingly sanctioned on 23.09.2006. Against the above allotment respondents filed appeals which were dismissed by the Executive District Officer (Revenue) vide order dated 23.10.2009. Respondents No. 1 to 3 again filed ROR No. 1708/2009 in which status quo order granted. Petitioner filed application for clarification of stay order on 19.11.2009, in which it was clarified that stay order was not extended, as the same has elapsed. After the above classification, the possession of land measuring 36-Kanals was delivered to the petitioner through Roznamcha Waqiati dated 21.11.2009. Respondents filed application for restoration of their possession which was allowed vide order dated 24.05.2010. Petitioner challenged said order through Writ Petition No. 13246/2010.

Shoukat Ali etc., filed ROR No. 1729/2009 against order dated 23.10.2009 passed by the Executive District Officer (Revenue) which was accepted by the Member (Judicial-VII), Board of Revenue, Punjabvide order dated 19.04.2011 and set aside order dated 19.09.2006 passed by the District Officer (revenue), Pakpattan and order dated 23.10.2009 passed by the Executive District Officer (Revenue), Sahiwal and remanded the matter to the Commissioner, Sahiwal Division, Sahiwal with the directions to summon the parties and decide the matter after examining the various instructions of Board of Revenue on the subject. Hence, these writ petitions.

1. I have heard the arguments advanced by the learned counsels for both the parties at full length and gone through the record with their able assistance.

5. After remand the matter in issue is still pending before the Commissioner Sahiwal Division Sahiwal and the petitioner may raise all the objections before the Commissioner Sahiwal Division, who shall

decide the matter on merit whereas, it is settled law that constitution petition is not maintainable against remand order. Reliance is placed on the case titled as Muhammad Ilyas Khan vs. Muhammad and Others (1986 SCMR 251). As after the remand the matter is still pending before the Commissioner, Sahiwal Division, Sahiwal and the petitioner is at liberty to raise all the legal and factual objections before the said forum which forum is under legal obligation to re-examine the case and decide the matter afresh and after decision of the same the aggrieved party whereof will haves remedies as per law as settled by the Hon’ble Supreme Court of Pakistan in a case titled as Allah Ditta and others vs. Member (Judicial), Board of Revenue and Others (2018 SCMR 1177). Reliance can also be placed on the cases titled as Ramzan vs. Rehabilitation Commissioner (Legal) Sargodha and Another (PLD 1963 (W.P.) Lahore 461), Akbar Ali and 18 Others vs. Mukhtar Ahmad and 14 Others (2007 CLC 768) and Ghulam Ahmad vs. Member Board of Revenue, Punjab, Lahore and Others (2010 CLC 1921).

6. As far as order dated 24.05.2010 whereby the Member (Colonies) Board of Revenue restored the possession of the respondent. The said order was challenged before this Court in W.P. No. 13246 of 2010 in which status quo order was passed on 23.06.2010, which is still operative. As the matters have been remanded back by the Member Board of Revenue to the Commissioner Sahiwal Division Sahiwal as such the issue of restoration of the possession to the respondent shall also be decided afresh by the said forum without being impressed by the above impugned order dated 24.05.2010.

1. In view of above, these writ petitions are disposed of. However, Commissioner, Sahiwal Division, Sahiwal is directed to decide the case between the parties as early as possible preferably within two months.

(Y.A.) Petition disposed of

PLJ 2021 Lahore 552 [Multan Bench, Multan]

Present: Muzamil Akhtar Shabir, J.

Sayyed SOHAIL HASAN GILANI--Petitioner

versus

ELECTION COMMISSION OF PAKISTAN through Secretary Election Commission of Pakistan, Islamabad and 2 others--Respondents

W.P. No. 9355 of 2019, decided on 4.3.2021.

Constitution of Pakistan, 1973--

----Arts. 62, 63 & 199--Constitutional petition--Disqualification of respondent to contest elections--Retrospective effect--Non-availing of remedy before election tribunal--Maintainability--As petitioner’s B.A. degree has been cancelled, hence, Respondent No. 1 may be directed to de-notify petitioner by declaring him as disqualified permanently to contest elections with retrospective effect--Petitioner has not disclosed the provision of law under which this Court is obliged required to refer the matter to the ECP to declare the respondent as disqualified with retrospective effect especially when the petitioner himself has not approached said forum before approaching this Court--Besides, as some disputed facts are involved in matter requiring deeper appreciation, which cannot be decided in a summary manner, therefore, this Court is not inclined, to issue direction to ECP in terms of prayer of petitioner--Petition dismissed. [Pp. 554 & 555] A, B & C

Mr. S.M. Areeb Abdul Khafid, Advocate for Petitioner.

Hafiza Mehnaz Nadeem Abbasi, Legal Advisor Election Commission of Pakistan for State.

Date of hearing: 4.3.2021.

Order

Through this constitution petition the petitioner has prayed as under:

“In these circumstances, it is most respectfully and humbly prayed that while declaring Respondent No. 03 to be disqualified permanently in terms of Articles 62 and 63 of the Constitution of the Islamic Republic of Pakistan, 1973 on account of his using the pseudonymous, fake and forged degree of B.A. Examination, making false statement and on its basis posing himself to be a graduate and thereby contesting the general elections 2002 and 2013 respectively as stated above and the Election Commission of Pakistan, Respondent No. 01 may also please be directed to de-notify Sayyed Ali Hasan Gilani, Respondent No. 03 from the date when he for the first time entered upon his office in the years 2002 and 2013 accordingly and to initiate all legal proceedings against him including the recovery of entire financial benefits, privileges, perks, remuneration etc. so received by him for the whole period of his holding the office of the M.N.A. for both of the tenure of the National Assembly after the general elections of 2002 and 2013 respectively in the largest interest of justice and for maintaining and upholding the rule and majesty of law in letter and spirit. Any other and further relief deems fit and suitable may also please be granted.”

1. The petitioner seeks disqualification of respondent No. 3 (“Respondent”) to contest general elections for the years 2002 & 2013 and to de-notify him with retrospective effect and initiate legal proceedings against him for recovery of entire financial benefits, perks and remuneration etc. received by him for the afore-referred period when he remained an elected MNA for afore-referred two terms of five years by contending that the degree for B.A. possessed by the respondent, has been declared as bogus by Islamia University, Bahawalpur.

3. The petitioner has been confronted with the question of maintainability of this petition on the grounds that the same has been filed belatedly after the Respondent No. 3 has ceased to hold the office of MNA, petition having been filed without availing the remedy before the Election Tribunal at the relevant time, under Article 63 of the Constitution of Islamic Republic of Pakistan the Speaker could have referred the question of disqualification to the Election Commission, which had not been done and involvement of some disputed questions requiring determination through deeper appreciation in this case, he states that through the judgments, reported as 2013 CLJ 499 (“Mian Najeeb ud Din Owasi. v. Amir Yar Waran, etc”) and PLD 2010 Lahore 583 (“Muhammad Jameel v. Amir Yar and 6 others”) the disqualification of candidate lacking requisite qualification with retrospective effect was considered and decided by the Superior Courts of this Country. Similarly in this case, as petitioner’s B.A. degree has been cancelled, hence, the Election Commission of Pakistan (ECP)/Respondent No. 1 may be directed to de-notify the petitioner by declaring him as disqualified permanently to contest elections with retrospective effect. When questioned whether the petitioner had approached any forum of competent jurisdiction or the ECP for seeking the same relief before invoking constitutional jurisdiction of this Court, he states that this Court may be pleased to refer the matter to the ECP to decide the same in terms of prayer made in this petition. The petitioner has not disclosed the provision of law under which this Court is obliged/required to refer the matter to the ECP to declare the respondent as disqualified with retrospective effect especially when the petitioner himself has not approached the said forum before approaching this Court. Besides, as some disputed facts are involved in

the matter requiring deeper appreciation, which cannot be decided in a summary manner, therefore, this Court is not inclined to issue direction to ECP in terms of the prayer of the petitioner, which is disposed of with observation that the petitioner shall be at liberty to seek appropriate remedy available under the law for redress of his grievance.

(Y.A.) Petition disposed of

PLJ 2021 Lahore 555 [Bahawalpur Bench, Bahawalpur]

Present: Muhammad Sajid Mahmood Sethi, J.

ABID SHARIF--Petitioner

versus

AJMAL ALI KHERA--Respondent

C.R. No. 252 of 2013/BWP, decided on 27.1.2021.

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

----Ss. 12(2), 115 & 144--General Clauses Act, 1897, S. 24(a)--Suit for rendition of account--Ex-parte decreed--Execution of final decree--Auction of vacant plot purchased by petitioner--Issuance of sale certificate--Possession was handed over to petitioner--Application for setting aside ex-parte decree by respondent--Allowed--Revision petition--Dismissed--Application for restitution of possession by respondent--Appeal--Allowed--Third party interest--Bona fide purchaser--Mandate of Section 24-A of G.C.A.--Direction to--Although Section 144, CPC is based on principle that act of Court should not injure rights of any person however, it is well-settled that with holding of sale, third party interests intervene which cannot be disregarded and a valid sale in execution would not become invalid to prejudice of auction purchaser because decree has been wiped out or reversed in meantime--Appellate Court has not thrashed out above important aspect of matter, which renders impugned judgment non-speaking, being against mandate of Section 24-A of General Clauses Act, 1897--There must be something in order or judgment itself to show that Court concerned was conscious of each and every aspect of matter and had applied its mind to questions of prime importance--Revision petition allowed. [P. 557 & 558] A & B

PLD 1987 SC 512, PLD 2009 SC 207, 2019 SCMR 1453 and PLD 2020 SC 227 ref.

Mr. S.M. Areeb Abdul Khafid Shah Bukhari, Advocate for Petitioner.

M/s. Rana Hassan Ali Mehmood and Rana Muhammad Rameez Aslam, Advocates for Respondent.

Date of hearing: 27.1.2021.

Order

Through instant revision petition, petitioner has challenged the vires of judgment dated 6.3.2013, passed by learned Additional District Judge, Bahawalpur, whereby respondent’s appeal against order dated 31.1.2012, passed by learned Civil Judge, Bahawalpur, was allowed and application under Section 144, CPC, filed by respondent was accepted.

1. Brief facts of the case are that Sardar Muhammad Aslam filed a suit for rendition of accounts against respondent. After initiation of ex-parte proceedings against respondent, a preliminary decree was passed on 8.3.1994 and final decree was passed on 17.11.1994. During execution of said final decree, 1/3rd of a vacant plot measuring 12 x 100 Sq.Ft = 6¾ Marla of House No. 834/B-IV, situated in Zanana Hospital Road, Bahawalpur, owned by the respondent, was auctioned, which was purchased by the auction-purchase/petitioner. Sale certificate was issued in petitioner’s favour and pursuant to his application, possession of said property was also handed over to him on 13.7.1995, whereof execution petition was consigned to record having borne fruit. Later on, respondent field application under Section 12(2), CPC for setting aside aforesaid preliminary decree as well as final decree, which was allowed by learned trial Court and revision petition, filed by plaintiff/decree-holder Sardar Muhammad Aslam, was dismissed. During pendency of the suit, respondent filed application under Section 144, CPC through his attorney Muhammad Akhtar for restitution of possession of the property in dispute which petitioner had obtained during execution of final decree. Said application was contested. Learned trial Court, after hearing arguments of both sides, proceeded to dismiss the application vide order dated 31.1.2012. In appeal, learned Additional District Judge allowed application under Section 144, CPC and directed the petitioner to hand over possession of disputed property to respondent. Hence, instant petition.

2. Learned counsel for petitioner submits that petitioner is a bona fide purchaser for value and as such, is an auction-purchaser, who received possession of the property in question after issuance of sale certificate by learned Executing Court, hence, impugned judgment directing restitution of the property in dispute, having been passed without any lawful justification, is unsustainable in the eye of law. In support, he has referred to Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. and others (PLD 1987 Supreme Court 512), Hassan Din v. Hafiz Abdus Salam and others (PLD 1991 Supreme Court 65), Mumtaz-ud-Din Feroze v. Sheikh Iftikhar Adil and others (PLD 2009 Supreme Court 207), Messrs Habib and Company and others v. Muslim Commercial Bank Limited and others (2019 SCMR 1453), MessrsHabib and Company and others v. Muslim Commercial Bank Limited and others (PLD 2020 Supreme Court 227), Hafiz Abdul Salam v. Hassan Din (2020 YLR 2297), Pearvey Lal v. Hanifunnissa Bibi and another (34 I.C. 303 Allahabad High Court) and R. Raghavachari v. M.A. Pakkiri Mahommed Rowther and others(34 I.C. 760 Madras High Court).

3. Conversely, learned counsel for respondent defends the impugned judgment. In support, he has relied upon Khalid Rasool and 2 others v. Muhammad Sharif and 2 others (1987 CLC 253), Mst. Imtiaz Bibi, etc. v. Mr. Abdul Qadir Shad, Additional District Judge, Lahore etc. (1998 CLJ 354), Mst. Sultan Bibi and 25 others v. Gul Baran and others (PLD 1999 Quetta 56), Barkat Ali v. Additional District Judge, Faisalabad and 5 others (PLJ 2001 Lahore 153), Parvaiz and 4 others v. Muhammad Ramzan and 5 others (2009 CLC 513), University of Health Sciences and others v. Mumtaz Ahmad and another (2010 SCMR 767), Province of Punjab through Collector and others v. Muhammad Saleem and others (PLD 2014 Supreme Court 783), Muhammad Atif Iqbal and others v. Zeeshan Ali and others (2020 CLC 1813) and Sri Lakshmi Narayan and others v. Sri Surath Lal Chakraborti and others (PLD 1964 Dacca 177).

4. Heard. Available record perused.

6. Although Section 144, CPC is based on the principle that act of the Court should not injure rights of any person however, it is well-settled that with the holding of sale, third party interests intervene which cannot be disregarded and a valid sale in execution would not become invalid to the prejudice of the auction purchaser because the decree has been wiped out or reversed in the meantime. Distinction has to be drawn between decree-holder who comes to purchase under his own decree and bona fide purchaser who comes and gets sale in execution of decree to which he was not party. Where third party is bona fide auction-purchaser, his interest in sale of auction has to be protected. The question whether restitution can be obtained under Section 144, CPC against a bona fide purchaser for value at an auction sale held by a Court, which has jurisdiction to hold the same needs to be determined by learned Appellate Court. Reliance

is placed upon the cases of Hudaybia Textile Mills Ltd., Hassan Din, Mumtaz ud Din Feroze and Messrs Habib and Company supra.

7. Learned Appellate Court has not thrashed out the above important aspect of the matter, which renders the impugned judgment non-speaking, being against the mandate of Section 24-A of the General Clauses Act, 1897. There must be something in the order or judgment itself to show that the Court concerned was conscious of the each and every aspect of the matter and had applied its mind to the questions of prime importance.

1. In view of the above, instant petition is allowed and impugned judgment is set aside. The case is remitted to learned Appellate Court with direction to re-decide the same through a well-reasoned speaking judgment, strictly in accordance with law as well as case law referred supra, 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 2021 Lahore 558 (DB)[Multan Bench, Multan]

Present: Sardar Muhammad Sarfraz Dogar and Ch. Abdul Aziz, JJ.

MUHAMMAD IBRAHIM KHOSA and another--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior Islamabad and 5 others--Respondents

W.P. No. 15032 of 2020, decided on 8.12.2020.

Constitution of Pakistan, 1973--

----Art. 199--Fundamental right--Petitioners were arrayed as accused in NAB Reference No. 50 of 2016 and after trial were acquitted by Accountability Court vide judgment dated 24.11.2018--During pendency of proceedings before NAB, names of petitioners were placed in Exit Control List/Black list--According to grievance voiced herein, though petitioners have been acquitted from aforesaid Accountability Reference but their names have not been removed from Exit Control List--Held: If a person is not required in any criminal case, his name cannot be placed in Exit Control List/Black list--Similarly, movement of an individual can only be curtailed in consonance with express provision of law--After having attained acquittal from Accountability Court, there is no occasion to place names of petitioners in Exit Control List/Black list--Even during arguments, Law Officer could not point out any circumstance so as to justify placing of petitioners’ names in Exit Control List/Black list--It is further observed that one Muhammad Iqbal Malik, who was also implicated along with petitioners as accused in aforementioned Reference, approached this Court through Writ Petition No. 1190/2020 with similar grievance and his name was ordered to be removed from Exit Control List/Black list--Even after careful examination of record, we have not come across any distinguishing feature between case of petitioner and of Muhammad Iqbal Malik. [Pp. 559 & 560] A & B

Ch. M. Saeed Machra, Advocate for Petitioners.

Mehr Munir Hussain Sandhal, Deputy Attorney General for Pakistan with Khawar Iqbal Khan, Assistant Director, Immigration Passport, Multan.

Mr. Muhammad Akram Rao, Special Prosecutor NAB.

Date of hearing: 8.12.2020.

Order

Through the instant writ petition, Muhammad Ibrahim Khosa and Mehmood Yaseen Zahid (petitioners) have made the following prayer:

“In view of above, it is respectfully prayed that this petition may kindly be graced with acceptance and the respondents may very kindly be directed to remove the name of the petitioners from Exit Control List (Black List) as soon as possible so that the petitioners be able to move abroad for performing Umrah with their families, which is his religious obligation/duty and fundamental right.

Any other relief to which this Hon’ble Court deemed fit, appropriate may also granted to petitioners.”